Lopez v. Malley
| Decision Date | 15 April 1977 |
| Docket Number | No. 77-1126,77-1126 |
| Citation | 552 F.2d 682 |
| Parties | Juan Jose LOPEZ, Petitioner-Appellant, v. Clyde MALLEY, Warden, New Mexico State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William Deaton, Federal Public Defender, Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., filed memorandum in opposition to summary affirmance on behalf of petitioner-appellant.
Toney Anaya, Atty. Gen., Louis Druxman, Asst. Atty. Gen., Santa Fe, N. M., appeared on behalf of respondent-appellee.
Before PICKETT, Senior Circuit Judge, and SETH and McWILLIAMS, Circuit Judges.
Appellant Lopez was tried and convicted in a New Mexico state trial court of commercial burglary and larceny. He appealed, unsuccessfully, to the New Mexico Court of Appeals. His subsequent application for post-conviction relief to the trial judge pursuant to Rule 57, New Mexico Rules of Criminal Procedure, was also unsuccessful.
Following the foregoing unsuccessful attempts to obtain post-conviction relief through state courts, Lopez initiated the instant habeas corpus proceedings in the district court. His petition was dismissed on the ground that state post-conviction remedies have not been exhausted. Notice of appeal was filed on behalf of Lopez by counsel, the Federal Public Defender for New Mexico. However, we were advised during the early stages of the instant appeal that Lopez had escaped from custody. He apparently remains at large to date. We must therefore decide whether this appeal should be dismissed due to the fact that the appellant is presently in an escape status.
Estelle v. Dorrough, 420 U.S. 534 at 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975). The reasoning in support of such dismissals is that, if the case were affirmed, the appellant in all likelihood would not surrender to submit to his sentence. If reversed, he will probably surrender only if it is in his interest. We are accordingly reluctant to decide what may prove to be a moot case. United States v. Swigart, 490 F.2d 914 at 915 (10th Cir. 1973). See also Ruetz v. Lash, 500 F.2d 1225, 1229 (7th Cir. 1974); United States v. O'Neal, 453 F.2d 344 (10th Cir. 1972).
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