                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 19 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 00-2125
 v.
                                                  (D.C. No. CIV-99-649 SC)
                                                         (Dist. N.M.)
 JONATHAN BENALLY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Appellant Jonathan Benally brings this pro se habeas appeal under 28

U.S.C. § 2255. In this appeal, Benally raises the same six issues that were

considered and rejected either by this court on direct appeal or by the district

court on habeas review. Because he does not present any new facts or arguments

to support these issues, and because we believe these issues were properly



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
disposed of when they were considered previously, we deny certificate of

appealability and dismiss the appeal.

      The facts of this case are set out in detail in this court’s opinion on direct

appeal, United States v. Benally, No. 96-2296, 1998 WL 339688 (10th Cir. June

24, 1998). We summarize them briefly here. On October 3, 1995, Jonathan

Benally was drinking with friends. He met, drank with, and then fought Russell

John later that night. Benally was found by a federal jury to be guilty of second

degree murder for beating John to death. At trial it was stipulated that Benally

and John were enrolled members of the Navajo tribe and that the altercation took

place within the boundaries of the Navajo Indian Reservation in the State of New

Mexico. The federal trial court had jurisdiction under 18 U.S.C. § 1153, which

provides for the application of select criminal laws (including murder and

manslaughter) to crimes committed in Indian country by Native Americans, and

18 U.S.C. § 3231.

      At the outset, we consider whether Benally filed a timely habeas appeal.

We conclude that he did. The district court dismissed Appellant’s § 2255 motion

on January 11, 2000. See Doc. 11. The deadline for filing this appeal was

Monday, March 13, 2000 – sixty days from dismissal of Benally’s motion

(Saturday, March 11, 2000), forwarded to the next working day. See Fed. R. App.

P. 4(a)(1)(B) (sixty days); Fed. R. App. P. 26(a)(3) (push deadline to next


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working day). The envelope in which Benally’s Notice of Appeal was mailed was

postmarked March 13, 2000. See Record Folder, attached to left side (Marked

“A”); see also Fed. R. App. P. 4(c)(1) (establishing “mailbox rule” for inmates).

Benally mistakenly sent this notice of appeal to the court of appeals, rather than

to the district court. When this happens, however, Federal Rule of Appellate

Procedure 4(d) (formerly 4(a)(1)) provides that the notice shall be deemed filed

and transmitted to the district court. See Knox v. Wyoming, 959 F.2d 866, 867-68

n.2 (10th Cir. 1992). Thus, the mailbox rule for inmates, Rule 4(c)(1), and the de

jure transmittal to the district court, Rule 4(d), combine to make this appeal

timely.

      In his appellate brief, Benally raises six issues: (1) ineffective assistance of

counsel; (2) failure to instruct the jury on the lesser included offense of

involuntary manslaughter; (3) violation of Miranda v. Arizona; (4) speedy trial

violation; (5) improper refusal to reduce his sentence for acceptance of

responsibility; and (6) unconstitutional racial discrimination in selection of the

grand and petit juries. This court considered and rejected issues two and five on

direct appeal, see Benally, 1998 WL 339688, at *3-5, and Appellant does not raise

any new facts or legal arguments in his habeas petition. Similarly, the magistrate

judge on habeas review considered and rejected the substance of all six issues.

See Doc. 8 (Magistrate Judge’s Proposed Findings and Recommended


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Disposition, filed October 29, 1999). The district court adopted the magistrate

judge’s findings and recommended disposition. See Doc. 11. While Benally

formulates these issues in different ways in this appeal, we believe the substance

of each issue has previously been correctly dealt with by a court in the course of

these proceedings. After reviewing the substance of each claim, we agree with

the district court that Appellant has failed to make a substantial showing of a

denial of a constitutional right. See 28 U.S.C. §2253(c)(2); see also Doc. 13

(district court’s denial of certificate of appealability for same reason).

      Therefore, for substantially the reasons stated in the district court’s order

and the magistrate judge’s findings and recommended disposition, we decline to

issue a certificate of appealability. Since this appeal is without merit, we deny his

motion to proceed in forma pauperis. See Fed. R. App. P. 24. This appeal is

accordingly DISMISSED.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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