Sosa v. Williams

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This order and judgment is not binding precedent, except under the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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