F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 21 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
NATHAN E. JONES,
Petitioner-Appellant,
v. No. 98-8029
(D.C. No. 97-CV-76)
JIM FERGUSON, WARDEN, and the (D. Wyo.)
ATTORNEY GENERAL FOR THE
STATE OF WYOMING,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9.
Nathan Jones was convicted in state court of first degree felony murder and
sentenced to life in prison. He brought a pro se petition for federal habeas corpus
relief under 28 U.S.C. § 2254, alleging that the destruction of the transcript of his
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
first preliminary hearing denied him due process, that he had ineffective
assistance of counsel at trial and on appeal, and that the State had destroyed
exculpatory evidence. The district court denied relief, holding that Mr. Jones had
failed to make a showing of need for the transcript, that he had failed to timely
request the transcript, and that he had failed to raise any issues with respect to the
preliminary hearing in state court. The court also rejected Mr. Jones’ ineffective
assistance claims, ruling that they were both conclusory and procedurally barred.
Finally, the court held that the Wyoming Supreme Court’s resolution on direct
appeal of his claim of destruction of evidence was not contrary to federal law or
based on an unreasonable view of the facts.
Mr. Jones appeals, asserting that the loss of the preliminary hearing record
denied him due process, that key witnesses changed their testimony between the
first preliminary hearing and the trial, and that the holding of a second
preliminary hearing denied him due process. We affirm.
Mr. Jones had two preliminary hearings in connection with the murder
charge against him. After the first hearing, which lasted approximately seven
hours, the Justice of the Peace ruled that the State had failed to prove probable
cause and discharged Mr. Jones and his two codefendants. The three defendants
were immediately rearrested, brought before another Justice of the Peace, and
summarily bound over for trial. Mr. Jones was convicted and sentenced to life in
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prison. He was paroled fifteen years later and apparently began efforts at that
point to challenge his conviction. Upon discovering that the tapes of the first
preliminary hearing had been destroyed and that no transcripts existed, he filed
this action.
Mr. Jones asserts that he has been denied due process by the destruction of
the record of the first preliminary hearing. We begin our consideration of this
claim by pointing out that although Mr. Jones appealed his conviction, see Jones
v. State, 568 P.2d 837 (Wyo. 1977), the record contains no indication that Mr.
Jones’ counsel requested the transcript either for use at trial or on appeal. 1 Thus,
this case does not present the situation in which a defendant makes a
contemporaneous claim that the denial of a transcript deprived him of the tools of
an adequate defense or appeal. See Britt v. North Carolina, 404 U.S. 226, 226
(1971). 2 Here, Mr. Jones seeks the transcripts to prepare a collateral attack. Even
if we were to assume that the same standards apply, we conclude that under the
circumstances of this case Mr. Jones must make at least a colorable showing of
1
Mr. Jones appears to allege in his federal habeas petition that his appellate
counsel did move the appellate court for the transcript. The decision denying his
direct criminal appeal reveals that while counsel raised the suppression of a tape
of the pretrial statement of a State’s witness, this statement was not made at the
preliminary hearing. Counsel did not raise any issue with respect to the
preliminary hearing. See Jones v. State, 568 P.2d 837, 846-54 (Wyo. 1977).
2
Moreover, the record indicates that the destruction of the tapes was due at
least in part to the over fifteen-year interval between Mr. Jones’ trial and appeal
and his request.
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need for the transcript or of prejudice from the State’s inability to provide it.
The Supreme Court has cautioned against requiring a particularized
showing from a defendant who has been denied a transcript of a prior mistrial.
“[E]ven in the absence of specific allegations it can ordinarily be assumed that a
transcript of a prior mistrial would be valuable to the defendant in at least two
ways: as a discovery device in preparation for trial, and as a tool at the trial itself
for the impeachment of prosecution witnesses.” Id. at 228. We do not believe
that assumption is appropriate here, however, in view of the fact that Mr. Jones’
counsel did not seek the transcript in preparation for trial or appeal. Moreover,
“[c]ircuit courts considering the issue have generally shown a greater inclination
to examine the actual prejudice to the defendant resulting from the denial of a
transcript of a preliminary hearing than has been shown in cases involving the
denial of a trial transcript.” United States v. Rosales-Lopez, 617 F.2d 1349, 1356
(9th Cir. 1980), aff’d on other grounds, 451 U.S. 182 (1981); see also Phegley v.
Greer, 691 F.2d 306, 309 (7th Cir. 1982); United States ex rel. Moore v. Illinois,
577 F.2d 411, 417 (7th Cir. 1978). Accordingly, Mr. Jones’ failure to articulate
any showing of need for the transcript defeats his alleged denial of due process. 3
3
Mr. Jones alleges for the first time on appeal that he was denied a fair
trial because key witnesses changed their testimony between the first preliminary
hearing and trial. He does not identify the witnesses or describe the
inconsistencies in their testimony. Even if we were to consider a claim raised for
(continued...)
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Mr. Jones argues that he was denied due process when the State subjected
him to a second preliminary hearing after the first hearing resulted in a finding of
no probable cause. This argument is raised for the first time on appeal and we
therefore decline to consider it. We observe in any event that Mr. Jones’ real
complaint is that he won in the first proceeding and lost in the second. Such a
claim simply does not raise a constitutional issue. See Martinez v. Craven, 429
F.2d 18, 19-20 (9th Cir. 1970) (per curiam).
Finally, Mr. Jones asserts that he received ineffective assistance of counsel.
We agree with the district court that Mr. Jones’ allegations in this regard are
wholly conclusory and completely lacking in any supporting factual allegations.
The court properly denied relief on this ground.
We GRANT Mr. Jones’ application for a Certificate of Appealability and
his motion to proceed in forma pauperis, 4 and we AFFIRM the judgment of the
district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
3
(...continued)
the first time on appeal, such bare conclusory allegations are insufficient to make
the requisite showing.
4
We deny Mr. Jones’ request for appointment of counsel on appeal.
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