Kenneth Garcia, Petitioner-appellant, v. Robert Furlong; Gale Norton, Respondent-appellee, 39 F.3d 1191 (10th Cir. 1994)

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U.S. Court of Appeals for the Tenth Circuit - 39 F.3d 1191 (10th Cir. 1994)

Oct. 26, 1994

Before McWILLIAMS, BARRETT and LOGAN, Senior Circuit Judges.


After examining the briefs 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); Tenth Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Appellant Kenneth Garcia, appearing pro se, appeals from the district court's Order of May 12, 1994, which adopted the recommendation of United States Magistrate Judge Richard M. Borchers, rejected Garcia's objections thereto, and dismissed Garcia's 28 U.S.C. 2254 petition for a writ of habeas corpus.

The magistrate judge found that Garcia was not "in custody" for the purpose of challenging the validity of his 1973 Colorado conviction of Second Degree Burglary and Theft because the sentence on that conviction had been fully served.

On appeal, Garcia contends that (1) he has not procedurally defaulted his challenge to the 1973 conviction because there was no viable state remedy available to him, he did not knowingly and deliberately bypass state remedies, and he was justified in invoking C.R.S. 16-5-402(1), and (2) contrary to the holding of the district court and the recommendation of the United State Magistrate Judge, he was and is "in custody" for purposes of his 28 U.S.C. 2254 petition.

We have completely reviewed the record on appeal. We affirm substantially for the reasons set forth in the "Recommendation of United States Magistrate Judge" entered May 3, 1994.



This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470