This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of these appeals. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The causes are therefore ordered submitted without oral argument.
The captioned cases are the appeals from separate petitions for habeas corpus brought pursuant to 28 U.S.C. § 2254. Both petitioners raise identical issues; therefore, for purposes of this opinion, they shall be treated together.
Sammy and Rojorlo Roy Naranjo were found guilty of first degree kidnapping and first degree sexual assault. The convictions were appealed to the Colorado Supreme Court. In People v. Naranjo, 612 P.2d 1099 (Colo.1980), Sammy Naranjo appealed his convictions on the grounds that 1) there was insufficient evidence to support a first degree kidnapping conviction; 2) the first degree kidnapping statute was unconstitutional; 3) the trial court erred in refusing to instruct the jury on second degree sexual assault; and 4) the sentence received on the sexual assault conviction was an abuse of the trial court’s discretion. Id. at 1101. In People v. Naranjo, 612 P.2d 1106 (Colo. 1980), Rojorlo Roy Naranjo appealed his convictions alleging insufficient evidence to support a conviction of first degree kidnapping and the unconstitutionality of this statute. He also sought review of various trial orders and his sentence for sexual assault.
The Colorado Supreme Court found, in both cases, that the evidence was insufficient to support a verdict of first degree
The petitioners brought these actions for habeas corpus relief on the grounds that 1) their convictions for first degree sexual assault are inconsistent with the state supreme court’s order directing a verdict of acquittal on the first degree kidnapping charges; and 2) the state supreme court improperly ordered judgment entered as to second degree kidnapping, in violation of the Double Jeopardy Clause.
The district court reviewed these claims on the merits and dismissed the petitions with prejudice. The question here is whether these claims were properly before the district court in the first instance.
The issues raised here are attacks on the consequences of the action taken by the state supreme court on appeal of the Naranjos’ convictions. There is no showing that these issues were before the state court in post-conviction proceedings.
Therefore, the orders of the district court dismissing the petitions with prejudice are vacated and these cases are remanded for a determination on whether these issues have been properly exhausted.
Both petitioners have made motions for appointment of counsel on appeal. Those motions are hereby denied.