McDaniel v. Warden, U.S. Penitentiary , 35 F. App'x 822 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 23 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
VIVIAN EARL McDANIEL,
Petitioner - Appellant,
No. 02-3010
v.
(D.C. No. 01-CV-3020-RDR)
(District of Kansas)
WARDEN, U.S. PENITENTIARY,
LEAVENWORTH,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Vivian Earl McDaniel, a federal prisoner proceeding pro se, filed the
instant 28 U.S.C. § 2241 petition in district court seeking to enjoin the respondent
warden and “anyone acting in concert with him” from honoring a detainer lodged
against him by the state of Tennessee. McDaniel asserted that his conviction in
Tennessee state court, upon which the detainer was based, was obtained in
violation of the provisions of the Interstate Agreement on Detainers (“IAD”).
The district court dismissed the petition without prejudice so that McDaniel could
exhaust his state and administrative remedies. This court construes McDaniel’s
notice of appeal as a request for a certificate of appealability (“COA”). See
Montez v. McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) (“[A] federal prisoner
seeking to challenge a detainer arising out of process issued by a state court must
obtain a COA in order to appeal a district court order denying relief.”); Fed. R.
App. P. 22(b) (“If no express request for a certificate is filed, the notice of appeal
constitutes a request addressed to the judges of the court of appeals.”).
To be entitled to a COA, McDaniel must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the
district court dismisses a habeas petition on procedural grounds without reaching
the merits of the underlying constitutional claim “a COA should issue when the
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
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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).
In response to the district court’s order, McDaniel asserts that he need not
seek discretionary review from the Tennessee Supreme Court in order to exhaust
his state remedies. The cases relied on by McDaniel to support this proposition
were all decided before O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999),
wherein the Supreme Court held that discretionary appeal to the state’s highest
court is a necessary predicate to proper exhaustion. Furthermore, McDaniel’s
assertion that he was prevented from exhausting his state remedies because of the
violation of the anti-shuttling provisions of the IAD is belied by the record.
McDaniel filed a state habeas petition in Tennessee circuit court in 1999, but
failed to seek discretionary review in the Tennessee Supreme Court. Because the
district court’s procedural ruling is not reasonably debatable, McDaniel is not
entitled to a COA. Accordingly, this court DENIES his request for a COA and
DISMISSES this appeal for substantially those reasons set out in the district
court’s orders dated May 21, 2001 and January 14, 2002.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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