Westley v. Kurtz , 35 F. App'x 839 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 24 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD ALLEN WESTLEY,
Petitioner - Appellant,
v.
No. 02-1051
(D.C. No. 01-Z-2418)
ROBERT KURTZ, Warden, and THE
(D. Colorado)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.
Petitioner-Appellant Richard Allen Westley appeals from the denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. He claims that the
Colorado state courts erred in determining that he had not established excusable
neglect for the untimely filing of his motion for post-conviction relief in state
*
After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
court. The excusable neglect arises, according to Westley, from his lack of access
to an adequate law library during his incarceration. This claim is not the proper
subject of habeas review. As the district court properly recognized, an alleged
error that “focuses only on the State’s post-conviction remedy and not the
judgment which provides the basis for his incarceration . . . states no cognizable
federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998).
Westley’s motion for a certificate of appealability is DENIED. This appeal
is DISMISSED. The motion to proceed in forma pauperis is also
DENIED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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