Winsness v. Van Der Veur ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 25 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM KARL WINSNESS,
Petitioner-Appellant,
v. No. 96-4193
(D.C. No. 95-CV-391-B)
FRED VAN DER VEUR, Warden; (D. Utah)
UTAH STATE PRISON; STATE
OF UTAH,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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.
Petitioner William Karl Winsness appeals the district court’s order adopting
the recommendation of the magistrate judge to dismiss his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. The habeas petition was filed
on April 28, 1995, before enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA). Consequently, AEDPA does not apply. See Lindh v.
Murphy, 117 S. Ct. 2059, 2068 (1997). Petitioner’s request to proceed in forma
pauperis on appeal is granted. We issue a certificate of probable cause, and
affirm.
Our review of the district court’s legal conclusions is de novo; we afford
a presumption of correctness to the state court’s findings of fact unless not fairly
supported by the record. See Sena v. New Mexico State Prison, 109 F.3d 652,
653 (10th Cir. 1997).
We have carefully considered petitioner’s arguments in light of the record
and the prevailing law. We affirm the dismissal of his habeas petition for
substantially the reasons stated in the magistrate judge’s comprehensive report
and recommendation dated September 3, 1996, adopted by the district court on
October 29, 1996.
Petitioner maintains the district court was required to hold a hearing on his
habeas petition. A federal district court is not required to hold a hearing unless
the petitioner makes “allegations which, if proved, would entitle him to [habeas]
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relief.” Medina v. Barnes, 71 F.3d 363, 366 (10th Cir. 1995). Despite
petitioner’s insistence to the contrary, the factual issues pertaining to
inconsistencies in the testimony of the police officers and the locations of the
bullet holes were presented to the jury. The evidence he now seeks to introduce
is cumulative. Therefore, an evidentiary hearing was not required.
Petitioner argues that the district court erred in refusing to appoint an
attorney for him. He also seeks appointment of counsel by this court. “[T]here
is no constitutional right to counsel beyond the appeal of a criminal conviction,
and . . . generally appointment of counsel in a § 2254 proceeding is left to the
court’s discretion.” Swazo v. Wyoming Dep’t of Corrections State Penitentiary
Warden, 23 F.3d 332, 333 (10th Cir. 1994). The district court did not abuse its
discretion in declining to appoint counsel in this case. Petitioner’s request for
appointment of counsel on appeal is denied.
Petitioner’s remaining motions are denied. The judgment of the United
States District Court for the District of Utah is AFFIRMED. The mandate shall
issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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