F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 28 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
LONNIE RAY SIMPSON,
Petitioner-Appellant,
v.
No. 99-1471
(D.C. No. 99-D-497)
EUGENE ATHERTON and THE
(D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
Proceeding pro se, Lonnie Ray Simpson seeks a certificate of appealability
in order to pursue this appeal from an order of the district court denying his
petition for habeas corpus brought pursuant to 28 U.S.C. § 2254. Because Mr.
Simpson has failed to make “a substantial showing of the denial of a
*
After examining appellant’s brief 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
constitutional right,” as required under 28 U.S.C. § 2253(c)(2), we deny his
request and dismiss the appeal.
In December 1994, Mr. Simpson was arrested and imprisoned for a parole
violation and suspicion of two counts of theft by receiving. In February 1995,
while he was still imprisoned, he was charged in El Paso County Colorado,
District Court with one count of theft by receiving, two counts of aggravated
motor vehicle theft, and four counts of being an habitual criminal. Mr. Simpson
retained counsel, but counsel was allowed to withdraw from the case in March
1995. Mr. Simpson hired another attorney and trial was set for July 24, 1995.
In April 1995, after Mr. Simpson was regressed to a state Department of
Corrections facility, the Department of Corrections filed a detainer on Mr.
Simpson regarding the El Paso County charges. On April 17, 1995, Mr. Simpson
requested a final disposition of the detainer pursuant to the Uniform Mandatory
Disposition of Detainers Act (UMDDA). His request was received by the El Paso
County District Court on May 11, 1995.
On July 24, 1995, Mr. Simpson’s attorney requested a continuance in his
client’s absence. The trial was reset for November 6, 1995. On September 11
and September 14, 1995, Mr. Simpson filed pro se motions to dismiss the El Paso
County charges because he had not been provided a speedy trial in accordance
with the UMDDA, and he had not authorized his attorney to seek a continuance.
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On October 31, 1995, the trial court held a hearing and denied the motions to
dismiss, finding that the original trial date of July 24, 1995 was within the 90-day
period mandated by the UMDDA. On November 6, 1995, Mr. Simpson’s attorney
and the prosecutor made a joint request to continue the trial until December 4,
1995.
Other requests for continuances were made and granted, and trial finally
commenced on August 26, 1996. Mr. Simpson was convicted of two counts of
aggravated motor vehicle theft and four counts of being an habitual criminal. On
March 10, 1997, he was sentenced to concurrent terms of twenty-four years in the
custody of the Department of Corrections. On June 25, 1998, the Colorado Court
of Appeals affirmed Mr. Simpson’s conviction. On January 4, 1999, the Colorado
Supreme Court denied his petition for writ of certiorari.
In his original habeas petition filed on March 12, 1999, 1 Mr. Simpson
asserted thirty-five claims. On March 23, 1999, the district court ordered Mr.
Simpson to show cause why the application should not be denied as a mixed
petition because he had failed to exhaust state remedies as to claims five through
thirty-five. See Rose v. Lundy, 455 U.S. 509 (1982) (holding that federal district
court must dismiss a state prisoner's habeas corpus petition containing both
Because Mr. Simpson filed his habeas petition after April 24, 1996, the
1
provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) apply to his appeal. See Lindh v. Murphy, 521 U.S. 320, 326 (1997).
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unexhausted and exhausted claims). On April 16, 1999, in his response to the
order to show cause, Mr. Simpson voluntarily dismissed all unexhausted claims.
On May 28, 1999, the order directing Mr. Simpson to show cause was discharged.
On July 8, 1999, Mr. Simpson filed a letter to the court asking that his case be
held in abeyance while he exhausted state remedies on his new claims. The
district court denied the request because Mr. Simpson failed to specify what his
new claims were and failed to provide any reason that would justify holding the
case in abeyance.
In the remaining four claims in his petition, Mr. Simpson argued that (1)
his speedy trial rights were violated, (2) he was denied ineffective assistance of
counsel because of his attorneys’ repeated requests for continuances, (3) he was
improperly adjudicated an habitual criminal because his current conviction should
not count due to the speedy trial violation, and (4) cumulative error resulted in a
fundamentally unfair trial. Mr. Simpson’s speedy trial, ineffective assistance of
counsel, and habitual offender claims were adjudicated on the merits in state court
proceedings; therefore, to prevail, Mr. Simpson had to show that the adjudication
of those issues was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
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proceeding.” 28 U.S.C. 2254(d). The district court found that Mr. Simpson
failed to make such a showing and dismissed those claims. Therefore, finding no
individual errors, the district court also dismissed Mr. Simpson’s cumulative error
claim.
On appeal, Mr. Simpson argues that the district court erred in its ruling, and
in denying his request to hold the case in abeyance while he exhausted state
remedies on new claims. We have reviewed the district court’s judgment in light
of Mr. Simpson’s submissions to this court and the record on appeal. We agree
with the district court that the speedy trial, ineffective assistance of counsel, and
habitual offender claims should be dismissed. The Colorado Court of Appeals’
application of Barker v. Wingo, 407 U.S. 514 (1972), in analyzing Mr. Simpson’s
speedy trial claim was not objectively unreasonable. Similarly, its application of
Strickland v. Washington, 466 U.S. 668 (1984), in assessing Mr. Simpson’s
ineffective assistance of counsel claim was not objectively unreasonable. Mr.
Simpson’s arguments concerning his habitual offender status fail because of the
dismissal of his speedy trial claim. Because there are no individual errors
resulting from any of the above claims, Mr. Simpson has no viable cumulative
error claim.
With regard to the district court’s denial of Mr. Simpson’s request to hold
the case in abeyance while he exhausted state remedies on new claims, we also
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find no error. The claims Mr. Simpson identifies as new claims in his petition are
claims he raised in his original petition to the district court. Mr. Simpson
voluntarily dismissed those unexhausted claims when the district court ordered
him to show cause why his application should not be denied as a mixed petition.
Having chosen to dismiss those claims in order to proceed with his petition, he
cannot argue that the claims remain viable and that the court should have held the
case in abeyance.
We therefore DENY Mr. Simpson’s request for a certificate of appealability
and DISMISS this appeal. We GRANT his motion for in forma pauperis status.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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