Todd v. Raemisch

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 20, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BYRON TYROME TODD,
Petitioner - Appellant,
v. No. 17-1079
(D.C. No. 1:16-CV-02363-LTB)
RICK RAEMISCH, Executive Director of (D. Colo.)
D.O.C.; CYNTHIA COFFMAN, the
Attorney General of the State of Colorado,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
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Byron Todd, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to challenge the denial of his 28 U.S.C. § 2254 motion. We
deny a COA and dismiss the appeal.
I
On September 2, 2016, Todd was sentenced in Colorado state court, following
his conviction for failing to register as a sex offender. On October 11, 2016, he filed
a direct appeal to the Colorado Court of Appeals. While his direct appeal remained
pending, Todd filed the present federal habeas petition challenging his conviction.
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The district court dismissed the petition without prejudice as premature. Todd now
seeks a COA from this court to appeal that decision.
We may issue a COA only if Todd can show “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). Because Todd’s direct appeal remains
pending, no reasonable juror could debate the district court’s conclusion. See
Carbajal v. Lynn, 640 F. App’x 811, 813 (10th Cir. 2016) (unpublished) (“[I]t would
be premature to address Carbajal’s . . . challenge to his Denver County convictions
while his direct appeal remains pending.”); Sherwood v. Tompkins, 716 F.2d 632,
634 (9th Cir. 1983) (“When . . . an appeal of a state criminal conviction is pending, a
would-be habeas corpus petitioner must await the outcome of his appeal before his
state remedies are exhausted . . . .”).
II
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Todd’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
2