Henry Louis Jackson, Petitioner-appellant, v. O. Lane Mccotter, Executive Director Utah Department Ofcorrections; Tom House, Utah State Board Ofpardons, Respondents-appellees, 5 F.3d 546 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

This matter is before the court on petitioner Henry Louis Jackson's application for a certificate of probable cause. Case No. 92-4221 was initiated following dismissal of petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. 2254. Case No. 93-4057 was filed as an appeal from the district court's denial of petitioner's application for a certificate of probable cause in conjunction with appeal No. 92-4221. We address these appeals jointly.

A certificate of probable cause will issue only if petitioner can make a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings. Barefoot v. Estelle, 463 U.S. 880 (1983).

Petitioner currently has pending before the Utah Court of Appeals an appeal from the state district court's denial of a petition for a writ of habeas corpus. Thus, under Rose v. Lundy, 455 U.S. 509 (1982), he has not yet exhausted his state law remedies. The time elapsed since petitioner's filing of that appeal April 27, 1992, is not so long as to violate due process under Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). Therefore, petitioner must await a decision from the Utah Court of Appeals, and, if it is adverse, appeal that decision to the Utah Supreme Court, before he will have exhausted his state law remedies.

Because petitioner has failed to make a substantial showing of the denial of an important federal right, the application for a certificate of probable cause is DENIED, and the appeals are DISMISSED.

The mandate shall issue forthwith.