Walker v. Stanley ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 15, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CORTEZ EDW ARD W ALKER,
Petitioner-A ppellant, No. 06-1406
v. 06-CV -1252-ZLW
ALLAN F. STANLEY, DEBORAH C. (D.C. No. D. Colorado)
ALLEN , VERNE R. SAINT V INC ENT,
TO M W AT ER S, and N A TH A N
OLD ORF,
Respondents-Appellees.
OR DER
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
This matter is before the court on Cortez W alker’s requests for a certificate
of appealability (“COA”) and to proceed on appeal in forma pauperis. W alker
seeks a COA so he can appeal the district court’s dismissal without prejudice of
his 28 U.S.C. § 2241 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing
that no appeal may be taken from a “final order in a habeas corpus proceeding in
which the detention complained of arises out of process issued by a state court”
unless the petitioner first obtains a COA); M ontez v. M cKinna, 208 F.3d 862, 867
(10th Cir. 2000) (holding that state prisoners proceeding under § 2241 cannot
appeal adverse district court judgments without first obtaining a COA). Because
W alker has not “made a substantial showing of the denial of a constitutional
right,” this court denies his request for a COA and dismisses this appeal.
W alker’s request for permission to proceed on appeal in form a pauperis is
likewise denied.
W alker is in the custody of the Colorado Department of Corrections. In his
§ 2241 habeas corpus petition, W alker sought to challenge an order of the
Colorado Parole Board revoking his parole based on his violation of a special
parole condition, i.e., that he would not possess or use illegal drugs. In response,
the district court ordered W alker to show cause why his petition should not be
dismissed for failure to exhaust state court remedies. W hen W alker failed to
demonstrate he had exhausted his state court remedies, the district court
dismissed the petition without prejudice.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this
standard, W alker must show “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation
omitted). That is, W alker must show the district court’s resolution of his petition
was either “debatable or wrong.” Id. Because W alker’s petition was dismissed
on procedural grounds, he must make both a substantial showing of the denial of a
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constitutional right and also show “jurists of reason would find it debatable . . .
whether the district court was correct in its procedural ruling.” Id.On appeal, W alker argues the district court erred in raising the issue of
exhaustion sua sponte, and in dismissing on that basis, because the exhaustion
requirement is non-jurisdictional. Although it is true the exhaustion requirement
is non-jurisdictional, W alker’s arguments are otherw ise completely without merit.
As noted by the district court, exhaustion of state court remedies is a prerequisite
to filing a § 2241 habeas petition. M ontez v. M cKinna, 208 F.3d 862, 866 (10th
Cir. 2000). This court has specifically held, in the context of a 28 U.S.C. § 2254petition, “that a court may raise the defense of nonexhaustion sua sponte.” Odom
v. Boone, 62 F.3d 327, 332 n.2 (10th Cir. 1995). This court has reached the same
result, in two unpublished dispositions, with regard to petitions brought under
§ 2241. M erritt, No. 00-1027, 2000 W L 1370432, at *1 (10th Cir. M ay 30,
2000); Holman v. Booker, No. 98-3124, 1998 W L 864018, at *4 (10th Cir. Dec.
14, 1998). Accordingly, W alker has failed to carry his burden of demonstrating
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the district court’s procedural ruling is reasonably subject to debate. W alker’s
requests for a COA and to proceed on appeal in forma pauperis are hereby
DENIED. The appeal is DISM ISSED. All pending motions are DENIED.
Entered for the Court
Elisabeth A . Shumaker, Clerk
By:
Deputy Clerk
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