1965); Shearer v. Patterson, 411 P.2d 247 (Colo. 1966); Saxton v. Patterson, 370 F.2d 112 (10 Cir. 1966). It appears certain that the Colorado Supreme Court has never examined the merits of appellant's complaints. "In Colorado the sole question in a habeas corpus action by one convicted of a crime is whether the sentencing court had jurisdiction of the person and the offense and whether the sentence was within the statutory limitations.
372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Wood v. Crouse, 389 F.2d 747 (10th Cir. 1968); Brown v. Crouse, 395 F.2d 755 (10th Cir. 1968); Omo v. Crouse, 395 F.2d 757 (10th Cir. 1968); Chavez v. Baker, 399 F.2d 943 (10th Cir. 1968); see Bratt v. Crouse, 346 F.2d 146 (10th Cir.) cert. denied 382 U.S. 932, 86 S.Ct. 324, 15 L.Ed.2d 343 (1965); Saxton v. Patterson, 370 F.2d 112 (10th Cir. 1966). Wood v. Crouse, 389 F.2d 747 (10th Cir. 1968); Brown v. Crouse, 395 F.2d 755 (10th Cir. 1968).
These issues were raised for the first time in briefs and argument at the second appellate hearing and appellee objects to its being decided here. Since the issues have not been presented to the Colorado courts, the federal court may not decide them absent special circumstances. 28 U.S.C. ยง 2254(b) and (c); Saxton v. Patterson, 370 F.2d 112 (10th Cir. 1966); Boseant v. Fitzharris, 370 F.2d 105 (9th Cir. 1966); Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Appellant's contention that the death penalty constitutes a cruel and unusual punishment proscribed by the Eighth Amendment was first raised on appeal. However, this contention has been recently rejected by Colorado in first degree murder cases.
As earlier pointed out, all of Barry's various proceedings in the New Jersey courts preceded his conviction which he chose not to appeal. See Saxton v. Patterson, 370 F.2d 112 (10 Cir. 1966); Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936 (4 Cir. 1964).Separate opinion by FREEDMAN, Circuit Judge.
In these circumstances the trial court very properly denied relief on the grounds that petitioner had not exhausted his available state remedy. Petitioner cannot now be heard to say that because the time for taking appeal in the state court has now expired he is entitled to federal habeas corpus relief. Cf. Saxton v. Patterson, Warden, December 16, 1966, 10 Cir., 370 F.2d 112. But, even so, the Attorney General in his brief and at the bar of this court has directed attention to the liberality of the Colorado Court in granting late writs of error for just cause.