Cody Robert Judy, Petitioner-appellant, v. State of Utah, Respondent-appellee, 117 F.3d 1428 (10th Cir. 1997)

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 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.