F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 31 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANIEL WILSON SOSA,
Petitioner - Appellant,
v.
No. 02-2243
(D.C. No. CIV-01-1457-LH/DJS)
JOE WILLIAMS, Warden, Lea County
(D. New Mexico)
Correctional Facility; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and 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.
*
This order and judgment is not binding precedent, except under the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.
In 1999, pro se petitioner Daniel Wilson Sosa was convicted by a New
Mexico state jury of first degree murder. On December 31, 2001, Sosa filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The federal
district court denied the petition and Sosa is before this court seeking a certificate
of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Sosa is not entitled to a COA unless he can make
a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
Sosa can make this showing by demonstrating that the issues raised are debatable
among jurists, a court could resolve the issues differently, or that the questions
presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473,
483-84 (2000).
In his § 2254 petition, Sosa alleged that: (1) he was denied due process
because one of the witnesses against him at trial received a bribe in exchange for
her false testimony; (2) the state of New Mexico failed to disclose evidence in
violation of Brady v. Maryland , 373 U.S. 83, (1963); and (3) his trial counsel
was constitutionally ineffective. Although Sosa had not exhausted all the
remedies available to him in New Mexico state court, the magistrate judge
prepared a comprehensive Report and Recommendation addressing the merits of
each issue raised in Sosa’s petition. See Brown v. Shanks , 185 F.3d 1122, 1125
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(10th Cir. 1999) (“If a habeas petition contains both exhausted and unexhausted
claims we may reach the merits to deny the unexhausted claim . . . .”). The
district court adopted the magistrate’s recommendation and dismissed Sosa’s
petition.
We have reviewed Sosa’s application for a COA and appellate brief, the
magistrate judge’s report and recommendation, the district court order, and the
entire record on appeal. We have also conducted a “preliminary, though not
definitive, consideration” of the legal framework applicable to each of Sosa’s
claims. See Miller-El v. Cockrell , 123 S. Ct. 1029, 1040 (2003). From that
examination, we conclude that Sosa has failed to “demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack , 529 U.S. at 484. Accordingly, Sosa has not made “a
substantial showing of the denial of a constitutional right” and is not entitled to a
COA. 28 U.S.C. § 2253(c). This court denies Sosa’s request for a COA and
dismisses this appeal. All outstanding motions are dismissed as moot.
ENTERED FOR THE COURT,
Michael R. Murphy
Circuit Judge
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