Darks v. Ward ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
TYRONE PETER DARKS,
Petitioner-Appellant,
v.
No. 96-6086
(D.C. No. CIV-96-268-T)
RON WARD, Warden, Oklahoma
(W.D. Okla.)
State Penitentiary; and DREW
EDMONDSON, Attorney General of
the State of Oklahoma,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
Petitioner-Appellant Tyrone Peter Darks was convicted of first degree
murder on November 20, 1995 in Cleveland County, Oklahoma, District Court.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Darks was subsequently sentenced to death by lethal injection. Three months
after his conviction, on February 21, 1996, Darks filed a petition for a writ of
habeas corpus in the United States District Court for the Western District of
Oklahoma. In the petition, Darks raised various constitutional and evidentiary
objections to the state court conviction. However, because Darks’ state court
direct appeal was still pending, the district court dismissed the petition without
prejudice for failure to exhaust state remedies. Darks filed a notice of appeal on
March 6, 1996, and filed an application for a certificate of probable cause on
March 26, 1996. Under the amended version of 28 U.S.C. § 2254, we treat
Darks’ application for a certificate of probable cause as a motion for a certificate
of appealability. Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert.
denied, 117 S. Ct. 746.
The district court correctly concluded that Darks failed to exhaust state
remedies before pursuing this habeas action, and that it thus lacked jurisdiction to
consider the merits of Darks’ petition. 28 U.S.C. § 2254(b). In his petition,
Darks concedes that his appeal to the Oklahoma Court of Criminal Appeals was
filed on December 29, 1995. That court had not reached a decision on Darks’
appeal by the time his petition was filed, and we take judicial notice that it still
has not done so. Thus, the district court properly dismissed Darks’ petition sua
sponte. Odum v. Boone, 62 F.3d 327, 332-33 n.2 (10th Cir. 1995).
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Accordingly, Darks’ motion for a certificate of appealability is DENIED
and his appeal is DISMISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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