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Certificates of Appealability and Res Judicata in the 10th Circuit

By Gabriella Khorasanee, JD on January 31, 2014 | Last updated on March 21, 2019

I will be the first to admit that procedure is just not my thing. I like studying issues pertaining to Constitutional law and civil rights. Procedure? Meh. For example, when learning about res judicata in law school, I had to invoke "The Lion King" and sang res judicata to the tune of "Hakuna Matata" just to keep myself from falling asleep.

So, if at any point while reading this you feel the same urge, please feel free to join me in singing (or humming).

So why this case? Because it has the best opening line ever: "The trouble began when Javier and Jesus Carranza approached a dancer at a strip club and offered to pay her for sex." (Oh, and when your editor assigns you a post, you do it).


The Carranzas tried to arrange to pay for sex, but instead were the unsuspecting victims in a plot to rob them. When they went to the dancer's apartment, along with another dancer, they were met by two men. One of the men, Joe Gene Sanders, boyfriend of one of the dancers, shot both men in the back, and shot Javier in the head while he was on the ground. Javier died from his injuries, while Jesus survived.

Sanders was convicted by an Oklahoma jury of first degree murder, among other things, and his attempts at direct appeal and collateral attack in state court failed.

Habeas Corpus Certificate of Appealability

With no other options, Sanders filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because his was a state case, pursuant to Federal Rules of Appellate Procedure Rule 22, Sanders needed a certificate of appealability from a federal judge in order to proceed with his habeas corpus claim.

Here, the Tenth Circuit summarily found that Sanders did not raise his ineffective assistance of counsel claim before the district court, and therefore was barred from bringing it for the first time on appeal." Next, the court found that the admission of certain evidence at trial was beyond a reasonable doubt harmless. Finding no contrary law, or "unreasonable determination of facts," the court found that Sanders did not meet his burden, and denied his certificate of appealability.

As we learned in law school, appeals are a use it or loose it propostition.

Repercussions, If Any

If you were worried about not being able to cite an order denying a certificate of appealability, don't fret. According to Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1, you can cite a case "designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like" for its persuasive value, or "under the doctrines of law of the case, claim preclusion, and issue preclusion."

There, don't you feel better now?

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