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Date: Filed /
STATES COURT OF APPEALS
ORDER AND JUDGMENT(*)
KELLY and LUCERO, Circuit Judges.
Petitioner-Appellant Brian Kent Hastings appeals the denial of his habeas
petition under 28 U.S.C. § 2254. On appeal, he brings the same eleven claims
that were rejected by the district court. He argues that (1) his arrest for the
offense of conviction resulted from his incarceration for a crime he did not
commit; (2) the charges of check fraud and theft are multiplicitous; (3) the
sentencing judge never advised him of his due process rights; (4) his attorney
provided him with constitutionally ineffective assistance before the trial court;
(5) he was subject to malicious prosecution; (6) the Government violated his plea
agreement; (7) the Government obstructed justice by failing to respond to the
court's show cause order; (8) the state court lacked jurisdiction over the case
because the alleged offense occurred at a federally insured bank; (9) he was
subject to cruel and unusual punishment; (10) his attorney provided him with
constitutionally ineffective assistance of counsel by failing to appeal certain
issues; and (11) after his counsel withdrew during post-conviction proceedings
because of a conflict, he should have been appointed new counsel. We agree
substantially with the reasons set forth by the district court in rejecting these
claims, and thus AFFIRM the denial of Petitioner's habeas petition.
Petitioner has also filed a Motion for Limited Remand, arguing that, in
light of the Colorado Supreme Court's recent interpretation of certain statutory
provisions governing parole for sex offenders, see Martin v. People, 27 P.3d
(Col. 2001) (en banc); People v. Cooper, 27 P.3d 348 (Col. 2001) (en banc), the
imposition of mandatory parole against Hastings, a non-sex offender, violates his
equal protection rights. Even assuming that this argument is properly before us,
the equal protection argument fails because Hastings has not shown that non-sex
offenders are similarly situated to sex offenders. The Motion for Limited
Remand is accordingly DENIED. Petitioner's application for a certificate of
appealability and motion to proceed in forma pauperis are also DENIED.
ENTERED FOR THE COURT
David M. Ebel
Click footnote number to return to corresponding location in the text.
*.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.
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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