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    Faramarz Mehdipour appealed the dismissal of his habeas corpus petition challenging his Oklahoma state court conviction for intimidating a witness. The district court dismissed the petition without prejudice because it contained both exhausted and unexhausted claims. The Tenth Circuit Court of Appeals affirmed the dismissal, finding that Mehdipour failed to exhaust state remedies for two of the three claims in his federal petition as required before seeking federal habeas relief. The court denied a certificate of appealability, concluding Mehdipour did not make the necessary showing to warrant habeas relief or demonstrate the denial of a constitutional right.

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    Filed: Patrick Fisher

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    Faramarz Mehdipour appealed the dismissal of his habeas corpus petition challenging his Oklahoma state court conviction for intimidating a witness. The district court dismissed the petition without prejudice because it contained both exhausted and unexhausted claims. The Tenth Circuit Court of Appeals affirmed the dismissal, finding that Mehdipour failed to exhaust state remedies for two of the three claims in his federal petition as required before seeking federal habeas relief. The court denied a certificate of appealability, concluding Mehdipour did not make the necessary showing to warrant habeas relief or demonstrate the denial of a constitutional right.

    Original Description:

    Filed: 1999-08-12 Precedential Status: Non-Precedential Docket: 98-6483

    Original Title

    Mehdipour v. Snider, 10th Cir. (1999)

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    Faramarz Mehdipour appealed the dismissal of his habeas corpus petition challenging his Oklahoma state court conviction for intimidating a witness. The district court dismissed the petition without prejudice because it contained both exhausted and unexhausted claims. The Tenth Circuit Court of Appeals affirmed the dismissal, finding that Mehdipour failed to exhaust state remedies for two of the three claims in his federal petition as required before seeking federal habeas relief. The court denied a certificate of appealability, concluding Mehdipour did not make the necessary showing to warrant habeas relief or demonstrate the denial of a constitutional right.

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    19 views5 pages

    Filed: Patrick Fisher

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    Faramarz Mehdipour appealed the dismissal of his habeas corpus petition challenging his Oklahoma state court conviction for intimidating a witness. The district court dismissed the petition without prejudice because it contained both exhausted and unexhausted claims. The Tenth Circuit Court of Appeals affirmed the dismissal, finding that Mehdipour failed to exhaust state remedies for two of the three claims in his federal petition as required before seeking federal habeas relief. The court denied a certificate of appealability, concluding Mehdipour did not make the necessary showing to warrant habeas relief or demonstrate the denial of a constitutional right.

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT
    __________________________

    United States Court of Appeals


    Tenth Circuit

    AUG 12 1999

    PATRICK FISHER
    Clerk

    FARAMARZ MEHDIPOUR,
    Petitioner-Appellant,
    v.
    TWYLA SNIDER; ATTORNEY GENERAL
    OF THE STATE OF OKLAHOMA,

    No. 98-6483
    (W.D. Okla.)
    (D.Ct. No. 98-CV-884-C)

    Respondents-Appellees.
    ____________________________
    ORDER AND JUDGMENT *
    Before BRORBY, EBEL, and LUCERO, 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 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 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.
    *

    Appellant Faramarz Mehdipour appeals the district courts decision


    dismissing his habeas corpus petition filed pursuant to 28 U.S.C. 2254. We
    deny a certificate of appealability 1 and dismiss the appeal.

    In November 1996, a jury convicted Mr. Mehdipour of intimidating a state


    witness after conviction of two or more felonies, after which the state trial court
    sentenced him to sixty years imprisonment. Mr. Mehdipour alleged several
    errors including a claim that the state convicted him of a non-existent crime. In
    April 1998, the Oklahoma Court of Criminal Appeals dismissed Mr. Mehdipours
    claims and affirmed his conviction. Mr. Mehdipour did not file a state habeas
    petition for post-conviction relief.

    In his federal habeas corpus petition, Mr. Mehdipour claims (1) he was
    Mr. Mehdipour did not file an application for a certificate of appealability in the
    district court, nor did the district court issue a certificate of appealability. Under our
    Emergency General Order of October 1, 1996, we view the district courts failure to issue
    a certificate of appealability within thirty days after filing of the notice of appeal as a
    denial of a certificate. See United States. v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir.
    1997), overruled on other grounds, United States v. Kunzman, 125 F.3d 1363 (10th Cir.
    1997). On appeal, Mr. Mehdipour similarly did not file an application for a certificate of
    appealability and his brief does not discuss the issue. Federal Rule of Appellate
    Procedure 22(b) states [i]f no express request for a certificate is filed, the notice of
    appeal constitutes a request addressed to the judges of the court of appeals. Thus, we
    may construe Mr. Santurios notice of appeal as a request for a certificate of appealability.
    See Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir.), cert. denied, 118 S. Ct. 126 (1997).
    1

    -2-

    convicted of a hypothetical crime in violation of his due process rights; (2) the
    statue under which he was convicted is unconstitutionally vague; and (3) the trial
    court did not have jurisdiction to try him because he was not given a preliminary
    hearing on the attempt charge.

    The district court assigned the matter to a magistrate judge who


    recommended dismissing the petition without prejudice. The magistrate judge
    found Mr. Mehdipours failed to exhaust two of the three issues, raised in his
    federal petition, at the state level. The magistrate judge further determined that
    no exception to the exhaustion requirement applied so that, under the principles of
    comity and federalism, the petition should be dismissed without prejudice. The
    district court dismissed the habeas petition without prejudice agreeing with the
    magistrate judge that the habeas petition constituted a mixed petition of
    exhausted and unexhausted claims, and that Mr. Mehdipour failed to satisfy his
    burden of showing he exhausted all of his claims through available state
    remedies. In addition, the district court issued an order denying Mr. Mehdipours
    claim that the district court denied him access to the courts because it did not
    reach the merits of his motion for summary judgment prior to dismissal of his
    federal petition.

    -3-

    On appeal, Mr. Mehdipour raises five issues of error including whether (1)
    the district court should have considered Appellants unexhausted claims or
    allowed Appellant to amend his Petition; (2) he was entitle[d] to relief under
    summary judgment procedures; (3) sufficient facts were presented to afford the
    district court adequate basis for review; (4) his exhausted claims warranted relief
    such as to avoid dismissal of a mixed Petition; and (5) he was entitled to an
    evidentiary hearing to establish an adequate record for review.

    We review the legal basis for the district courts dismissal of Mr.
    Mehdipours 2254 petition de novo. See Jackson v. Shanks, 143 F.3d 1313,
    1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). We cannot grant Mr.
    Mehipour federal habeas corpus relief unless it appears that ... [he] has
    exhausted the remedies available in the courts of the State. 28 U.S.C.
    2254(b)(1)(A). The exhaustion requirement is satisfied if the federal issue has
    been properly presented to the highest state court, either by direct review of the
    conviction or in a postconviction attack. Dever v. Kansas State Penitentiary, 36
    F.3d 1531, 1534 (10th Cir. 1994). Thus, under 28 U.S.C. 2254(b)(1)(B), Mr.
    Mehdipour bears the burden of showing the Oklahoma Court of Criminal Appeals
    had an opportunity to rule on the same claims presented in federal court or that, at
    the time he filed his federal petition, no available state avenue of redress existed.
    -4-

    Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924
    (1992).

    Our review of the record shows Mr. Mehdipour did not raise, in his direct
    appeal to the Oklahoma Court of Criminal Appeals, two of the three issues raised
    in his federal petition. While Mr. Mehdipour presents sundry alleged errors on
    appeal and recites a plethora of legal principles, he wholly fails to make the
    requisite showing of exhaustion necessary to prevent dismissal. In sum, Mr.
    Mehdipour fails to show he exhausted his state remedies or that state remedies
    would be futile or are no longer available through state post-conviction attack.
    Under these circumstances, Mr. Mehdipour fails to make a substantial showing of
    the denial of a constitutional right as required by 28 U.S.C. 2253(b)(2).

    Accordingly, we deny Mr. Mehdipour a certificate of appealability and


    DISMISS his appeal.

    Entered by the Court:


    WADE BRORBY
    United States Circuit Judge

    -5-

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