                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                 JUL 14 1997
                                        TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                        Clerk

 CODY ROBERT JUDY,

           Petitioner - Appellant,
 vs.                                                         No. 96-4196
                                                         (D.C. No. 95-CV-989)
 STATE OF UTAH,                                                (D. Utah)

           Respondent - Appellee.


                                     ORDER AND JUDGMENT*


Before BRORBY, EBEL, and KELLY, Circuit Judges.**


       Mr. Judy, appearing pro se, appeals from the district court’s dismissal of his

habeas corpus petition, 28 U.S.C. § 2254, pursuant to the recommendation of the

magistrate judge. He also seeks a certificate of appealability. 28 U.S.C. § 2253(c)(2).

       As we understand the petition, Mr. Judy contends that (1) his guilty plea was not

knowing and voluntary, (2) he received ineffective assistance of counsel in connection


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
with his plea and was denied the right to an appeal due to ineffective assistance of

counsel, and (3) his conviction violates the First Amendment. The state responded that

the petition should be dismissed because of failure to exhaust state remedies and

procedural bar. We agree with the magistrate judge that the possibility of state post-

conviction relief on some or all of the claims has not been exhausted, and exhaustion is a

necessary prerequisite to bringing this action. 28 U.S.C. § 2254(b)(1)(A). We express no

opinion on whether such claims are procedurally barred. Because Mr. Judy may be able

to obtain relief on his federal claims in state court, he has not at this point made “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2).

       Therefore, we DENY Mr. Judy’s application for a certificate of appealability and

DISMISS the appeal.

                                                   Entered for the Court


                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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