Court: Court of Appeals for the Tenth Circuit; October 6, 2009; Federal Appellate Court
Richard G. Kirby, proceeding pro se, requests a certificate of appealability under 28 U.S.C. § 2253(c) to appeal the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition related to his conviction for felonious fraud in New Mexico, where he was sentenced to five years due to being a habitual offender. Kirby's petition included nine claims, with a magistrate judge determining that six claims were exhausted while three (Claims 6, 8, and 9) were not, as they had not been presented in any state court proceeding. The district court adopted these findings and denied a motion for reconsideration.
Claim 6 involved allegations of ineffective assistance of appellate counsel, Claim 8 concerned errors related to restitution, and Claim 9 addressed the trial court's failure to grant bond pending appeal. Kirby contended that all claims were exhausted or argued for the severance of the unexhausted claims while asserting that Claim 6 was exhausted. A certificate of appealability is granted if the applicant shows a substantial claim of a constitutional right denial; if the denial is procedural, the applicant must demonstrate that reasonable jurists could debate the validity of the claim or the procedural ruling.
Initial reviews indicate that Claims 6 and 9 may have been exhausted, but Claim 8 was not. Claim 6 was raised in an Amended Petition in state court, but the court did not address it in its denial. Kirby appealed to the New Mexico Supreme Court, incorporating prior arguments, though it is unclear if he included all relevant filings. Claim 9 was raised in a supplemental request for bond, which was presumably deemed moot following the lower court’s and the state supreme court’s denials of his amended habeas petition.
Claim No. 8 was raised by Kirby in his Amended Petition for Writ of Habeas Corpus on May 5, 2008, but he did not clearly articulate this issue. Following a preliminary review, it appears that Kirby has exhausted Claims Nos. 6 and 9, but not Claim No. 8. A certificate of appealability is granted to Kirby, allowing for specific issues to be addressed by the respondents, including the exhaustion of state court claims for Claims Nos. 6, 8, and 9; potential errors by the district court in not permitting the severance of these claims if deemed unexhausted; and the possibility of remanding the case for the district court's consideration of Kirby's request to sever and dismiss unexhausted claims while analyzing the merits of exhausted claims. The court grants Kirby's motion to proceed in forma pauperis on appeal and orders the respondents to submit a Response Brief within 30 days. The order is not binding precedent but can be cited for persuasive value.
