                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 6 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 TYRONE “McDANIEL” YAHWEH,

          Petitioner-Appellant,
 v.
                                                          No. 96-1517
 ARISTEDES W. ZAVARAS,
                                                      (D.C. No. 95-N-3258)
 Executive Director, Department of
                                                            (D. Colo.)
 Corrections; GALE A. NORTON,
 Attorney General of the State of
 Colorado,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges.


      Petitioner-Appellant Tyrone “McDaniel” Yahweh was convicted by a

Colorado state court jury on two counts stemming from an incident in which

Yahweh had sexual intercourse with (and impregnated) his fourteen year-old half

sister. Yahweh was 27 or 28 years old at the time. The incident occurred in



      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
November 1991, but was not reported to law enforcement authorities until April

1992. On May 8, 1992, Yahweh was arrested. Yahweh was tried in December

1992, but the jury could not agree on a verdict. He was retried and convicted in

March 1993, and sentenced to eight years in prison. The conviction and sentence

were subsequently affirmed by the Colorado Court of Appeals. People v.

McDaniel, No. 93-CA-0936 (Colo. Ct. App. Sept. 15, 1994) (unpublished order),

cert. denied, No. 94-SC-645 (Colo. Mar. 27, 1995) (unpublished order).

      Yahweh then brought the present petition for federal habeas corpus relief

under 28 U.S.C. § 2254 (Supp. 1996), alleging that his Sixth Amendment right to

a Speedy Trial was violated by the eleven-month period of incarceration to which

he was subject prior to his conviction. The district court granted Yahweh’s

motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(b) (as amended

in 1996). A magistrate judge then recommended dismissal of Yahweh’s petition,

on the grounds that Yahweh had failed to exhaust his state remedies. Yahweh v.

Zavaras, No. 95-N-3258 (D. Colo. Mar. 14, 1996) (Recommendation of

Magistrate Judge Borchers). After considering Yahweh’s objections, the district

court adopted the magistrate judge’s recommendation, and dismissed Yahweh’s

petition. Yahweh v. Zavaras, No. 95-N-3258 (D. Colo. Sept. 26, 1996) (Order of

Dismissal).




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      In addition, the district court denied Yahweh’s subsequent request for a

certificate of appealability. Yahweh v. Zavaras, No. 95-N-3258 (D. Colo. Nov.

12. 1996) (Order Denying Certificate of Appealability). “In a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court, an appeal by the applicant for the writ may not proceed unless a

district or a circuit judge issues a certificate of appealability. . . .” Fed. R. App.

P. 22(b) (as amended in 1996); accord 28 U.S.C. § 2253(c)(1)(A) (as amended in

1996). Where, however, as here, the district judge denies a habeas applicant’s

request for such a certificate, “the applicant for the writ may then request

issuance of the certificate by a circuit judge.” Id. If, as here, “no express request

for a certificate is filed, the notice of appeal shall be deemed to constitute a

request addressed to the judges of the court of appeals.” Id. Thus, we will

consider Yahweh’s notice of appeal to constitute a request for issuance of a

certificate of appealability.

      A certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2) (as amended in 1996). If issued, the certificate of appealability shall

indicate which specific issue or issues satisfy this showing. 28 U.S.C. §

2253(c)(3) (as amended in 1996).




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      In the present case, Yahweh has shown that he was incarcerated for eight

months prior to his initial trial, and eleven months prior to his conviction.

Further, he has alleged that Colorado’s Speedy Trial Act, Colo. Rev. Stat. § 18-1-

405 (1986 & Supp. 1996), is the only Speedy Trial Act in the United States which

begins to run from the time of arraignment rather than the time of arrest, and that

the United States Constitution requires that a “speedy trial” be measured from the

time of arrest. Because we think that Yahweh’s claims raise substantial

constitutional questions, we hereby grant Yahweh’s request for a certificate of

appealability.

      Nonetheless, we must deny Yahweh’s application for a writ of habeas

corpus. Under Section 104 of the Antiterrorism and Effective Death Penalty Act

of 1996:

      [a]n application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      unless it appears that:

             (A) the applicant has exhausted the remedies available
             in the courts of the State; or

             (B)(i) there is an absence of available State corrective
             process; or (ii) circumstances exist that render such
             process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1) (as amended in 1996). Section 104 applies even when it

appears to a federal court that a state prisoner has made a substantial showing that

he is being held in violation of his federal constitutional rights.

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      In the present case, Yahweh concedes that he has not exhausted his state

court remedies. Indeed, he concedes that he never raised his Speedy Trial Claim

at his trial, on his direct appeal, or in any state proceeding for postconviction

relief. Yahweh claims, however, that he need not exhaust state processes because

“circumstances exist that render such process ineffective to protect the rights of

the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii) (as amended in 1996). Specifically,

Yahweh claims that any proceeding in a Colorado state court would be futile

because the Colorado courts have already decided the precise issue Yahweh

raises, adversely to Yahweh’s position. See Goodwin v. Oklahoma, 923 F.2d 156,

158 (10th Cir. 1991) (holding that exhaustion of state remedies is not necessary

where the state’s highest court has explicitly and recently addressed the precise

issue advanced by a petitioner); Alvarez v. Turner, 422 F.2d 214, 216 n.3 (10th

Cir.), cert. denied, 399 U.S. 916 (1970) (same).

      In support of his claim, Yahweh cites an unpublished opinion of the

Colorado Court of Appeals in which an identical federal constitutional challenge

to Colo. Rev. Stat. § 18-1-405 (1986 & Supp. 1996) was rejected. See People v.

Green, No. 92-CA-1728, slip op. at 8 (Colo. Ct. App. Dec. 2 1993) (unpublished

Order), cert. denied, No. 94-SC-62 (Colo. Apr. 25, 1994) (unpublished Order).

The defendant in Green had argued that Colo. Rev. Stat. § 18-1-405 (1986 &

Supp. 1996) violates the Sixth Amendment by failing to begin the computation of


                                          -5-
the permissible trial period from the date of arrest, and by allowing the state six

months to begin the trial, rather than 120 days. Yahweh advances identical

arguments here.

      Despite the Green case, however, we must reject Yahweh’s claim that

recourse to the Colorado courts would be futile. As an initial matter, we note that

Green was an unpublished opinion of the Colorado Court of Appeals, and is

therefore not binding on any court in Colorado. Colo. App. R. 35(f). Indeed,

even published opinions of a panel decision of the Colorado Court of Appeals are

not binding on any other panel of that court. See People v. Young, 825 P.2d

1004, 1007 (Colo. Ct. App. 1991) (expressly declining to follow a recent opinion

of a different panel of the same court). Thus, for present purposes, the decision

of the Green panel is simply not equivalent to a binding opinion of the Colorado

Supreme Court.

      Further, Colorado courts have recognized the defect in the Colorado Speedy

Trial Act of which Yahweh complains. Correspondingly, Colorado courts have

been willing to recognize constitutional “speedy trial” claims even where the

requirements of the Colorado Speedy Trial Act were fully complied with. See,

e.g. Barela v. People, 826 P.2d 1249, 1255 n.5 (Colo. 1992) (“The fact that the

defendant was accorded his statutory right to a speedy trial . . . does not

necessarily resolve whether the delay occasioned by the dismissal of the


                                         -6-
impaneled but unsworn jury and the rescheduling of the trial violated the

defendant's constitutional right to a speedy trial or was otherwise violative of due

process of law.”) (emphasis in original); accord Gelfand v. People, 586 P.2d

1331, 1332 (Colo. 1978). Under these circumstances, we cannot agree that

recourse to the Colorado courts would be “futile.”

      Finally, we note that under Colo. R. Crim. P. 35(c)(3), a prisoner “who is

aggrieved and claiming either a right to be released or to have a judgment of

conviction set aside on [constitutional] grounds . . . may file a motion at any time

in the court which imposed sentence to vacate, set aside, or correct the sentence,

or to make such order as necessary to correct a violation of his constitutional

rights.” We see no reason why Yahweh cannot avail himself of this procedure.

We therefore hold that Yahweh has not exhausted his state remedies. See 28

U.S.C. § 2254(c) (as amended in 1996) (“An applicant shall not be deemed to

have exhausted the remedies available in the courts of the State . . . if he has the

right under the law of the State to raise, by any available procedure, the question

presented.”).

      Finally, we note that in the present appeal, Yahweh for the first time claims

that he received ineffective assistance of counsel, and that the state trial judge

was incompetent. These claims were neither raised in any Colorado state

proceedings, nor in the district court below. We thus decline to reach them. See


                                          -7-
Walker v. Mathers, 959 F.2d 894, 896 (10th Cir. 1992) (this court will not

consider an issue on appeal that was not raised below).

      We therefore AFFIRM the Order of the district court dismissing Yahweh’s

habeas corpus petition on the ground that Yahweh failed to exhaust his state

remedies. We also DENY Yahweh’s recently-filed Motion of Objection to Order,

in which Yahweh asks us to reconsider our Order of May 2, 1997, denying

Yahweh’s request to submit a 101 page brief.

      The mandate shall issue forthwith.



                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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