982 F2d 529 Mc Mayberry v. Hannigan

982 F.2d 529

M.C. MAYBERRY, Jr., Petitioner-Appellant,
Robert HANNIGAN; Attorney General of Kansas, Respondents-Appellees.

No. 92-3039.

United States Court of Appeals, Tenth Circuit.

Dec. 15, 1992.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Before BALDOCK and SETH, Circuit Judges, and BABCOCK,* District Judge.**


BALDOCK, Circuit Judge.

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Petitioner M.C. Mayberry, Jr. is presently serving two consecutive life sentences in Kansas on a conviction for first degree murder, together with a sentence for aggravated burglary. Petitioner appealed his convictions, and the Kansas Supreme Court affirmed. Petitioner then sought habeas corpus relief in federal district court; that court denied his habeas petition. Petitioner now appeals. Our jurisdiction arises from 28 U.S.C. § 2253.


The district court denied petitioner's motion for a certificate of probable cause. Petitioner moved for a certificate of probable cause in this court; we grant probable cause certification and affirm.


Petitioner raises thirteen issues for review: ten are issues presented to the district court in his initial habeas petition, and three are additional issues. We review petitioner's contentions of legal error de novo, Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir.1990). The state trial court's findings of fact are, with certain specified exceptions, accorded a special presumption of correctness under 29 U.S.C. § 2254(d); see Hernandez v. New York, 111 S.Ct. 1859, 1869 (1991). Following our careful review of the record on appeal, together with the parties' briefs and motions before this court, and applying these standards, we conclude that the district court correctly decided the ten issues presented. Therefore, for substantially the reasons stated in the district court's memorandum order dated January 31, 1992, we affirm the district court's judgment on these ten issues.


Additionally, petitioner asserts three points of error by the district court in: 1) its failure to address petitioner's motion for an evidentiary hearing, 2) its failure to address two of petitioner's issues, numbered nine and ten, and 3) its failure to address petitioner's motion for default on issues nine and ten. Our review of the record on appeal indicates that the district court did address petitioner's issues numbered nine and ten. See District Court's Memorandum and Order, I R. doc. 22 at 2, 6-7. The court ruled these issues to be without merit; we agree with that conclusion, as stated above. Petitioner also contends, as support for his motion for default on these issues, that respondents failed to address these issues in their initial response before the district court. Our review of the record indicates otherwise. See Answer and Return, I R. doc. 15 at 12-14, 19. Because respondents addressed these issues in their initial response, there was no factual basis for petitioner's motion for default on these issues. Under these facts, the district court's order implicitly denied petitioner's default motion. See Reeves v. MCI Telecommunications Corp., 909 F.2d 144, 144 (5th Cir.1990) (citing Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098 (1981)). Similarly, we conclude that the district court's order implicitly denied petitioner's motion for an evidentiary hearing, see id., therefore petitioner's assignment of error on this point is without merit.


The judgment of the United States District Court for the District of Kansas is AFFIRMED; all outstanding motions are DENIED.


Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation


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

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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