                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JAN 10 2003
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 BILLIE WOOLSTENHULME,

           Plaintiff - Appellant,
 v.

 TIM LEMASTER, Warden, New                              No. 02-2128
 Mexico State Penitentiary;                   D.C. No. CIV-01-1265-WJ/KBM
 LAWRENCE TAFOYA, Warden,                            (D. New Mexico)
 Southern New Mexico Correctional
 Facility; ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

           Defendants - Appellees.

 AND

 BILLIE WOOLSTENHULME,

           Plaintiff - Appellant,
 v.                                                     No. 02-2129
                                              D.C. No. CIV-01-1031-WJ/KBM
 LAWRENCE TAFOYA, Warden,                            (D. New Mexico)
 Southern New Mexico Correctional
 Facility; ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *



      After examining appellant’s brief and the 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) and 10th Cir. R.
                                                                     (continued...)
Before EBEL, LUCERO and HARTZ, Circuit Judges.


      Billie Woolstenhulme brings these unconsolidated appeals pro se to

collaterally attack his state sentence under § 2254. In his first petition (Petition

1), he lists a series of challenges to a 1997 plea bargain including that (1) he

never entered into a valid agreement to subject himself to habitual offender

proceedings in the event of a probation violation, (2) his attorney misled others

into believing that Woolstenhulme had entered into such an agreement, and (3)

that the habitual offender provisions were never mentioned in his plea colloquy

for the 1997 crimes. In Woolstenhulme’s second petition (Petition 2), he

challenges a 1999 plea bargain on the ground that he was denied the right to a

speedy trial.

      Yet in his 1999 plea bargain, Woolstenhulme admitted all of the facts that

he contests surrounding the 1997 plea bargain. We find the substance of

Petition 1 to have then been waived. Moreover, as there is no evidence in the

record that Woolstenhulme was not granted his right to a speedy trial during the


      *
        (...continued)
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.

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1999 proceedings, we find the substance of Petition 2 to be without merit. We

will deny the issuance of a certificate of appealability (COA) in both appeals.

      In 1997, Woolstenhulme pled guilty in New Mexico to six counts of fraud-

related crimes and one count of possession of a stolen vehicle. He also admitted

his identity as a person convicted of eight prior crimes in Oregon. A clause

inserted into this 1997 plea agreement advised Woolstenhulme that, if he violated

any law or condition of probation after he entered the agreement, he would be

“subject to habitual offender proceedings” based on those crimes.

Woolstenhulme signed the agreement, reaffirming under extensive questioning

from the judge both that he understood its terms and that the signature was his.

      In 1999, Woolstenhulme twice violated the terms of his probation and was

indicted for commercial burglary and larceny. Facing nearly forty years of

additional time under the habitual offender provisions of the 1997 plea agreement,

Woolstenhulme initially moved to challenge its validity in the state system. But

then he entered into a new plea agreement whereby he pled guilty to the charged

burglary and admitted to the violations of his probation. Under this new plea

agreement, Woolstenhulme would only serve sixteen years for the habitual

offender enhancement part of his sentence. He does not here challenge the plea

colloquy or the binding effect of his 1999 agreement.




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      This petitioner has filed under § 2254 before. His previous filing alleged

ineffective assistance of counsel and was dismissed for failure to exhaust that

claim at the state level. The magistrate judge and district court here, however,

chose to examine the merits of Woolstenhulme’s new filings as promoting

additional litigation of the case in state courts would be fruitless. Federal courts

have the authority to deny unexhausted claims that lack merit under Brown v.

Shanks, 185 F.3d 1122, 1123 (10th Cir. 1999).

      Turning to examine Woolstenhulme’s first petition, we agree with the

magistrate judge and the district court that his objections to the 1997 plea

agreement have been waived. The 1999 plea agreement covered the identical

ground. Woolstenhulme has admitted his prior convictions in open court and

accepted his sentence for them as a habitual offender. See, e.g., Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea.”)

      Turning to examine Woolstenhulme’s second petition, we agree that there is

no evidence in the record to support Woolstenhulme’s allegation that he was

denied the right to a speedy trial in 1999. Indeed, Woolstenhulme’s own motion

to supplement his filings asserts that the state court judge in the 1999 case denied


                                          -4-
his motion for continuance and forced him to appear in a timely way. He pled

guilty to the crime with which he was charged, obtained a highly favorable plea

bargain to reduce the amount of time he would serve for his violation of

probation, and received a plea hearing the same day. On these facts, there can be

no merit to Woolstenhulme’s second petition.

      For substantially the reasons stated by the magistrate judge and the district

court, we DENY the issuance of COA in response to both of Woolstenhulme’s

petitions and DISMISS his appeals. All outstanding motions are denied.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




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