Miles v. Atherton , 7 F. App'x 920 ( 2001 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 30 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MURPHY H. MILES, JR.,
    Petitioner-Appellant,                     No. 00-1460
    v.                                                 (D. Colo.)
    GENE ATHERTON and KEN                                (D.C. No. 99-B-1349)
    SALAZAR, Attorney General of the
    State of Colorado,
    Respondents-Appellees.
    ORDER AND JUDGMENT           *
    Before HENRY , BRISCOE , and MURPHY , 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    This order and judgment is not binding precedent, except under the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.
    Murphy H. Miles, Jr., a state prisoner proceeding pro se, filed a petition for
    a writ of habeas corpus in federal district court, alleging among other things that
    his constitutional rights were violated because of a flawed information. For the
    reasons set forth below, we dismiss the appeal.
    I. BACKGROUND & PROCEDURE
    In 1990, Mr. Miles was charged with four counts of second-degree assault
    in violation of 
    Colo. Rev. Stat. § 18-3-203
    (1)(f). Section 18-3-203(1)(f) provides
    in part that
    [a] person commits the crime of assault in the second degree if . . .
    while lawfully confined or in custody as a result of being charged
    with or convicted of a crime . . . , he or she violently applies physical
    force against a person engaged in the performance of his or her
    duties while employed by or under contract with a detention facility,
    . . . and the person committing the offense knows or reasonably
    should know that the victim is . . . a person engaged in the
    performance of his or her duties while employed by or under contract
    with a detention facility . . . .
    
    Colo. Rev. Stat. § 18-3-203
    (1)(f).   1
    The information under which Mr. Miles was
    charged stated that, for each count,
    1
    Section 18-3-203(1)(f) was later amended to read “[a] person commits
    the crime of assault in the second degree if . . . he or she  knowingly and
    violently applies physical force . . . .”   See 
    Colo. Rev. Stat. § 18-2-303
    (historical and statutory notes) (emphasis added).
    -2-
    Murphy Miles, while lawfully confined and in custody as a result of
    being charged with and convicted of a crime did unlawfully,
    feloniously, and violently apply physical force against . . . a person
    engaged in the performance of his duties while employed by and
    under contract with a detention facility . . .    and Murphy Miles knew
    and reasonably should have known         that [the victim] was a person
    engaged in the performance of his duties while employed by and
    under contract with a detention facility . . . .
    Info. at 1 (dated Aug. 14, 1990) (emphasis in original).
    After a jury trial, Mr. Miles was convicted of all four counts. He
    subsequently appealed his conviction and sought state post-conviction relief.
    After his conviction was affirmed and the state post-conviction relief denied, Mr.
    Miles filed a petition for a writ of habeas corpus in federal district court.    See 
    28 U.S.C. § 2254
    .
    In his report and recommendation, the magistrate judge determined that six
    of the seven claims raised in Mr. Miles’s petition were not exhausted. The
    magistrate judge also concluded that, in addition to being unexhausted, the six
    claims were procedurally barred under state law and that Mr. Miles did not
    demonstrate cause and prejudice to justify the procedural default. As for Mr.
    Miles’s last claim, the magistrate judge stated, “[T]he state court’s adjudication of
    [the] claim was in accordance with clearly established federal law . . . [and] based
    on a reasonable determination of the facts presented.” Rep. & Rec. at 15 (filed
    Sept. 15, 2000).
    -3-
    After considering the report and recommendation de novo, the district court
    denied Mr. Miles’s petition, concluding that the magistrate judge’s determinations
    were correct. When Mr. Miles later sought a certificate of appealability (“COA”)
    from the district court, the application was also denied. Mr. Miles thereafter filed
    an application for a COA with this court, as well as a motion to proceed in forma
    pauperis and an application to stay the district court’s decision pending appeal.
    II. DISCUSSION
    Because Mr. Miles is proceeding pro se, we liberally construe his
    pleadings. See Haines v. Kerner , 
    404 U.S. 519
    , 520-21 (1972) (per curiam).
    Under 
    28 U.S.C. § 2253
    (c), a COA may issue “only if the applicant has made a
    substantial showing of the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c).
    According to Mr. Miles, he meets this standard because: (1) in   People v. Hart ,
    
    658 P.2d 857
     (Colo. 1983), the Colorado Supreme Court improperly “conclude[d]
    that the mental state ‘knowingly’ is implied by [
    Colo. Rev. Stat. § 18-3
    -
    203(1)(f)],” 
    id. at 859
    ; and (2) the information did not give him adequate notice
    of the offense with which he was charged because it did not specify the requisite
    mens rea.
    We disagree. We have thoroughly reviewed Mr. Miles’s application for a
    COA, the magistrate judge’s report and recommendation, the district court’s order
    -4-
    adopting that report and recommendation, and the entire record before us. We
    conclude that Mr. Miles has failed to make a substantial showing of the denial of
    a constitutional right for substantially the same reasons set forth in the magistrate
    judge’s report and recommendation.
    Having denied Mr. Miles’s application for a COA, we now turn to his
    motion to proceed in forma pauperis and application for stay. Because Mr. Miles
    has shown “a financial inability to pay the required fees and the existence of a
    reasoned, nonfrivolous argument on the law and facts in support of the issues
    raised on appeal,” McIntosh v. United States Parole Comm’n            , 
    115 F.3d 809
    , 812
    (10th Cir. 1997) (internal quotation marks omitted), we grant his motion to
    proceed in forma pauperis.
    As for his application for stay, we deny on the ground that Mr. Miles has
    not offered any valid basis on which we can stay the district court’s denial of his
    habeas petition. Tenth Circuit Rule 22.2, for example, is not applicable because
    Mr. Miles was sentenced to a specific prison term for each count, not death.            See
    10 Cir. R. 22.2 (dealing with procedures in death penalty cases). Title 
    28 U.S.C. § 2251
     is not applicable as it is limited to stays of state proceedings.       See 
    28 U.S.C. § 2251
     (“A justice or judge of the United States before whom a habeas
    corpus proceeding is pending, may, before final judgment or after final judgment
    of discharge, or pending appeal, stay any proceeding against the person detained
    -5-
    in any State court or by or under the authority of any State for any matter
    involved in the habeas corpus proceeding.”).
    Accordingly, we DENY Mr. Miles’s application for a COA, DISMISS his
    appeal, GRANT his motion to proceed in forma pauperis, and DENY his
    application for stay.
    Entered for the Court,
    Robert H. Henry
    Circuit Judge
    -6-
    

Document Info

Docket Number: 00-1460

Citation Numbers: 7 F. App'x 920

Judges: Briscoe, Henry, Murphy

Filed Date: 4/30/2001

Precedential Status: Non-Precedential

Modified Date: 8/3/2023