Redmon v. Dowling

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 13, 2015
___________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID CHARLES REDMON,
Petitioner - Appellant,
No. 14-5130
v.
(D.C. No. 4:14-CV-00210-GKF-FHM)
(N.D. Okla.)
JANET DOWLING, Warden,
Respondent - Appellee.
____________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
DISMISSING APPEAL
____________________________________
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
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David Redmon, an Oklahoma state prisoner appearing pro se, seeks to appeal the
district court’s dismissal of his 28 U.S.C. § 2254 petition, claiming ineffective assistance
of counsel.1 We construe pro se filings liberally. See Garza v. Davis, 596 F.3d 1198,
1201 n.2 (10th Cir. 2010). The district court dismissed without prejudice Redmon’s
petition for failure to exhaust state remedies and denied his request for a certificate of
appealability (“COA”). Redmon now asks us to grant him a COA and hear his appeal.
“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the
1
Redmon waived the other two claims in his opening brief “by failing to assert them in
his district court habeas petition.” Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005).
prisoner shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Redmon gives us no reason to doubt the district court’s procedural ruling. His
“Combined Opening Brief and Application for a Certificate of Appealability” nowhere
asserts that he either exhausted or should not have to exhaust his state remedies before
seeking federal relief. Indeed, Redmon only references exhaustion once, in two lines,
which he then crossed out. After briefly stating his ineffective assistance claim, Redmon
wrote: “Didn’t show why I was denied, just said I was Denied because They said I did
not exhaust all remedies. What remedies did I not exhaust?” (errors in original). But the
district court’s order made abundantly clear why Redmon’s petition was dismissed: his
failure to exhaust state remedies. Moreover, the court even explained how Redmon
could timely exhaust those remedies as well as the federal consequences for failing to do
so.
Thus, for substantially the same reasons stated in the district court’s order, we
find Redmon has not made the requisite showing for a COA. Accordingly, Redmon’s
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request for a COA is DENIED and his appeal is DISMISSED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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