F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 18 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD LYNN WRIGHT,
Petitioner-Appellant, No. 98-4067
v. (D.C. No. 96-CV-274-J)
O. LANE McCOTTER, (D. Utah)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Petitioner Richard Lynn Wright is currently serving a sentence for
aggravated robbery in the Central Utah Correctional Facility in Gunnison, Utah.
He appeals the district court’s dismissal of his second petition for a writ of habeas
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
corpus filed pursuant to 28 U.S.C. § 2254. 1
Petitioner filed his second federal habeas corpus petition on April 12, 1996,
alleging two grounds for relief: (1) he was denied his Sixth Amendment right to a
speedy trial; and (2) his due process rights were denied because the Ogden City
magistrate judge had no authority to dismiss his criminal proceeding in 1976. The
matter was referred to a magistrate judge who recommended that the petition be
dismissed as successive and without merit. After reviewing objections from both
Petitioner and his counsel, 2 the district court adopted the magistrate judge’s
recommendation and, with some additional clarification, denied and dismissed the
section 2254 petition.
On appeal, Petitioner seeks a certificate of probable cause 3 from this court
and essentially claims that (1) the district court incorrectly determined that there
1
The complex procedure and history of this case is clearly set forth by the
district court in its Opinion and Order issued October 31, 1991, which was
adopted and incorporated by this court in its decision affirming the district court’s
dismissal of Petitioner’s first federal habeas corpus petition. See Wright v.
Deland, 986 F.2d 1432, 1993 WL 18625 (10th Cir.) (Table), cert. denied, 510
U.S. 834 (1993). Since Wright was issued on January 27, 1993, Petitioner filed a
second petition for relief in state trial court which was dismissed as frivolous on
November 1, 1993. The Utah Supreme Court affirmed that dismissal. See Wright
v. Carver, 886 P.2d 58 (Utah 1994).
2
Petitioner’s appointed counsel was permitted to withdraw after perfecting
the appeal but prior to briefing. Petitioner is proceeding pro se on appeal.
3
Because Petitioner filed his petition for habeas corpus before April 19,
1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996
do not apply to this appeal.
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are no new or intervening facts or law that warrant review of the Sixth
Amendment speedy trial claim, and (2) the court incorrectly dismissed
Petitioner’s due process claim because it “based its decision on an erroneous
interpretation of the prior habeas decision in 1991.” Appellant’s Application for
Certificate of Probable Cause at 2.
To obtain a certificate of probable cause, Petitioner must make a substantial
showing that the district court’s ruling resulted in the “denial of an important
federal right by demonstrating that the issues raised are debatable among jurists,
that a court could resolve the issues differently, or that the questions deserve
further proceedings.” Gallagher v. Hannigan, 24 F.3d 68, 68 (10th Cir. 1994)
(citing Barefoot v. Estelle, 463 U.S. 880 (1983)). 4
This court has conducted a de novo review of the briefs, Petitioner’s
application for a certificate of probable cause, the magistrate judge’s report and
recommendation, the district court’s order, and the entire record on appeal. Based
on that review, we conclude that the district court correctly determined that there
are no new or intervening facts or law that warrant review of the Sixth
4
This is precisely the same substantive showing that a petitioner must make
under AEDPA to obtain a certificate of appealability. See Lennox v. Evans, 87
F.3d 431, 434 (10th Cir. 1996), cert. denied, U.S. , 117 S. Ct. 746 (1997)
(standard for granting either certificate requires petitioner to make a substantial
showing of the denial of a federal constitutional right), overruled on other
grounds by United States v. Kunzman, 125 F.3d 1363, 1365 n.2 (10th Cir. 1997),
cert. denied, U.S. , 118 S. Ct. 1375 (1998).
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Amendment speedy trial claim and that it properly dismissed Petitioner’s due
process claim. When Petitioner was discharged from the indictment in 1976, no
criminal charges were pending against him; the criminal charges remaining were
pending against Mr. Leonard Eugene Wright. In its 1991 Order, the district court
stated: “Once the complaint was amended to reflect the name of Leonard Eugene
Wright, the prosecution of Richard Lynn Wright effectively terminated and
Richard Lynn Wright no longer stood accused.” Wright, 1993 WL 18625, at **6.
This statement, and the analysis underlying it, remain true today. Further, the
district court did not sanction the magistrate judge’s “dismissal” of the complaint
against Petitioner in the 1991 Order. Instead, the court concluded that the
practical result of the discharge of Petitioner from the indictment was to terminate
the prosecution against him in 1976; the court only sanctioned the actual
dismissal of the complaint against Leonard Eugene Wright. See id. Also of
particular significance is the district court’s conclusion that Petitioner’s “interest
in [the protections of] the right to a speedy trial was not implicated” until he
learned of the charges in 1985 because he did not know that charges had been
brought against him in 1976. Id. at **7. Like the panel of this court which
affirmed the district court’s 1991 Order, we can discern no error in any of this
analysis and have found no new or intervening law or facts that change our
determination.
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For these reasons and for substantially the same reasons set forth in the
magistrate judge’s report and recommendation and the district court’s order–both
of which clearly and thoroughly address Petitioner’s claims–we conclude that
Petitioner has failed to make the required substantial showing of the denial of an
important federal right. Accordingly, we DENY Petitioner a certificate of
probable cause and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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