D.K. Falasha Mansa Musa Amen-Ra v. Col. Larry B. Berrong, Jr., Commandant , 992 F.2d 1222 ( 1993 )

992 F.2d 1222

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

D.K. Falasha Mansa Musa AMEN-RA, Petitioner-Appellant,
v.
Col. Larry B. BERRONG, Jr., Commandant, Respondent-Appellee.

No. 92-3054.

United States Court of Appeals, Tenth Circuit.

April 21, 1993.

Before SEYMOUR and ANDERSON, Circuit Judges, and RUSSELL,* District Judge.

ORDER AND JUDGMENT**

SEYMOUR, Circuit Judge.

1

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.

2

Petitioner-appellant D.K. Falasha Mansa Musa Amen-Ra, f/k/a Dwayne Keith Jefferson, appeals from the district court's order dismissing his petition for a writ of habeas corpus. Petitioner is currently incarcerated at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and seeks reversal of his military conviction for felony murder. He claims the government violated his due process rights by suppressing evidence favorable to his defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963). His factual bases for this claim are several crime information reports from national and international investigative agencies indicating that he had been charged by the German police with attempted murder rather than the felony murder of which he was convicted. In dismissing his petition, the district court found this claim to be fanciful and without merit.

3

We review a district court's dismissal of a habeas corpus petition as frivolous for abuse of discretion. See LaFevers v. Saffle, 936 F.2d 1117, 1118 (10th Cir.1991). The record clearly shows, and petitioner does not dispute, that the victim died immediately after being shot in the head. Given the victim's death, it is apparent that the murder attempt succeeded. Under these circumstances, we cannot understand how reports indicating petitioner may have been charged by the German police with only attempted murder somehow indicate that the government had evidence it withheld showing petitioner did not commit the crime of felony murder as proved in his military trial, or how an initial charge of attempted murder would otherwise be favorable to his defense.

4

Because we conclude that petitioner has failed to present a reasoned, nonfrivolous argument on the law and facts in support of the issue he raises on appeal, see 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir.1962), we deny his motion to proceed on appeal without prepayment of costs or fees. The appeal is therefore dismissed, and the mandate shall issue forthwith.

*

Honorable David L. Russell, District Judge, United States District Court for the Western District of Oklahoma, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3