Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.henry O. Hicks, Jr., Petitioner-appellant, v. Raymond Roberts and Attorney General of Kansas, Respondents-appellees, 930 F.2d 922 (10th Cir. 1991)

Petitioner-appellant, Henry O. Hicks, Jr., seeks a certificate of probable cause to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition. He also seeks to proceed in forma pauperis on appeal. On September 12, 1988, petitioner was convicted in the district court of Johnson County, Kansas, of taking indecent liberties with a child. He did not appeal; however, he later moved for the sentencing court to review the conviction pursuant to Kan.Stat.Ann. Sec. 60-1507 (1983). After the state court denied the motion, petitioner did not seek review by a higher state appellate court as provided for in Kan.Stat.Ann. Sec. 60-1507(d). Instead, he filed a Sec. 2254 petition in federal district court, pointing to the same constitutional errors argued before the state court. The federal court dismissed the petition without prejudice because petitioner failed to exhaust the available state remedies as required by Sec. 2254(b). Additionally, the court declined to issue a certificate of probable cause.

"To fulfill the [Sec. 2254(b) ] exhaustion requirement, a petitioner must present his claim to a state appellate court." Osborn v. Shillinger, 861 F.2d 612, 616 (10th Cir. 1988). See also Picard v. Connor, 404 U.S. 270, 275 (1971) (claim must be fairly presented to the state courts). In this instance, petitioner's arguments did not reach the Kansas appellate courts because he did not file a notice of appeal from the state's post-conviction review procedure. Absent evidence that petitioner's claims are procedurally barred under Kansas law, see Castille v. Peoples, 489 U.S. 346, 351 (1989), we find that he has not exhausted the available state remedies¹  and that the district court correctly dismissed his Sec. 2254 petition. In denying petitioner's request to proceed in forma pauperis on appeal, we find that he does not have a rational argument based on law or fact to support his appeal since he has not exhausted the available state remedies. Coppedge v. United States, 369 U.S. 438 (1962). Likewise, "a 'substantial showing of the denial of [a] federal right' " is lacking. Barefoot v. Estelle, 463 U.S. 880, 892 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270, n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925 (1972)). Accordingly, we affirm the district court's denial of certificate of probable cause.

AFFIRMED.