Davis v. Bravo, 10th Cir. (2001)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
NOV 21 2001
PATRICK FISHER
Clerk
LEONARD DAVIS,
Petitioner - Appellant,
v.
No. 01-2198
(D. New Mexico)
ERASMO BRAVO, Warden,

Guadalupe County Correctional
Facility; THE CORRECTIONS
DEPARTMENT OF THE STATE OF
NEW MEXICO; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,
(D.C. No. CIV-01-140-JP/RLP)
Respondents - Appellees.
ORDER AND JUDGMENT
Before HENRY , BRISCOE , and MURPHY , 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This order and judgment is not binding precedent, except under the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.
*
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on Leonard Davis request for a certificate of
appealability (COA). Davis seeks a COA so that he can appeal the district
courts dismissal with prejudice of his habeas corpus petition.
2253(c)(1)(A).
See 28 U.S.C.
Because Davis has not made a substantial showing of the
denial of a constitutional right, this court

dismisses this appeal.
denies his request for a COA and
Id. 2253(c)(2).
Davis is currently serving a life sentence in New Mexico state prison for
first degree murder. He raised the following two general claims in his habeas
petition: (1) he was denied due process by the respondents refusal to apply
good-time credits to reduce the time he needed to serve in order to be eligible for
parole from thirty years to fifteen years; and (2) his conviction is invalid under
Apprendi v. New Jersey , 530 U.S. 466 (2000) because the jury would have only
convicted him of second degree murder if it had known that he would not get the
Davis petition is actually a hybrid in the sense that it challenged both his
underlying conviction and the execution of his sentence. It does not matter,
however, whether Davis petition is denominated as arising under 28 U.S.C.
2241 or 28 U.S.C. 2254 because he would need a COA in either case. See
Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) ([C]onsistent with the
plain language of [28 U.S.C.] 2253(c)(1)(A), this court holds that a state
prisoner must obtain a COA to appeal the denial of a habeas petition, whether
such petition was filed pursuant to 2254 or 2241 . . . .).
1
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benefit of good-time credits to reduce his parole eligibility date. After the case
was referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C.
636(b)(1)(B), the magistrate judge recommended that the petition be dismissed.
The magistrate judge noted that Davis claim to good-time credits was foreclosed
by this courts decisions in
Stephens v. Thomas , 19 F.3d 498, 501 (10th Cir. 1994)
and Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996). As to
Apprendi , the
magistrate simply noted that it had no application to this case. Upon
de novo
review, the district court adopted the recommendation of the magistrate judge and
dismissed Davis petition with prejudice.
In his brief on appeal and request for a COA, Davis asserts that
Stephens
and Lasiter are wrong and that the statutes in New Mexico clearly provide for the
application of good-time credits to reduce the parole eligibility date on a life
sentence.
This court is bound by the decisions in
Stephens and Lasiter absent a
superseding decision of the Supreme Court or reconsideration by the
en banc
court. See In re Smith , 10 F.3d 723, 24 (10th Cir. 1993). Furthermore, the
district courts interpretation of those cases as foreclosing Davis claim is clearly
not debatable among jurists, subject to a different resolution by this court, or
Neither Davis appellate brief nor his request for a COA mention the
Apprendi claim advanced in the district court. That claim is, therefore, waived.
See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)
([A]ppellant failed to raise this issue in his opening brief and, hence, has waived
the point.).
2
-3-
deserving of further proceedings.
See Slack v. McDaniel , 529 U.S. 473, 483-84
(2000). Accordingly, Davis has not made a substantial showing of the denial of
a constitutional right and is not entitled to a COA.
2253(c)(2). Davis request for a COA is
See id. ; see also 28 U.S.C.
DENIED and this appeal is
DISMISSED .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ERASMO BRAVO, Warden,

(D.C. No. CIV-01-140-JP/RLP)

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

Because Davis has not made a substantial showing of the

denial of a constitutional right, this court

denies his request for a COA and

Stephens v. Thomas , 19 F.3d 498, 501 (10th Cir. 1994)

and Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996). As to

magistrate simply noted that it had no application to this case. Upon

This court is bound by the decisions in

Stephens and Lasiter absent a

superseding decision of the Supreme Court or reconsideration by the

deserving of further proceedings.

See Slack v. McDaniel , 529 U.S. 473, 483-84

See id. ; see also 28 U.S.C.

DENIED and this appeal is

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