Dickinson vs. Tipton, No. 06-2140 (10th Cir. 2007)
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F IL E D United States Court of Appeals Tenth Circuit U N IT E D ST A T E S C O U R T O F A PP E A L S January 26, 2007 T E N T H C IR C U IT Elisabeth A. Shumaker Clerk of Court K EV IN B. D IC KIN SO N , Petitioner-A ppellant , v. HARRY TIPTON, Director, Bernalillo County M etropolitan D etention Center; A TTO RNEY G EN ER AL FO R THE STA TE OF N EW M EX IC O, No. 06-2140 ( New M exico ) (D.C. No. CIV-05-1317 BB /RLP ) Respondents-Appellee s. ORDER Before M U R PH Y , SE Y M O U R , and M cC O N N E L L , Circuit Judges. On Decem ber 19, 2005, Kevin B. Dickinson filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States D istrict Court for the D istrict of New M exico. Dickinson, who has been charged w ith first degree murder in New M exico, alleged ineffective assistance of counsel and violations of his due process rights and his right to a speedy trial. Respondents filed a m otion to dismiss Dickinson s application, arguing his claims were unexhausted because he failed to present them to the New M exico state court. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). The district court characterized Dickinson s application as properly brought pursuant to 28 U.S.C. § 2241 because he is a pretrial detainee. See Montez v. M cKinna, 208 F.3d 862, 870 (10th Cir. 2000). The court then granted Respondents m otion and dismissed the application without prejudice for failure to exhaust state remedies. Dickinson does not challenge the characterization of his application as a § 2241 proceeding but seeks to appeal the district court s dismissal of his application. Dickinson cannot appeal the district court s dism issal of his application unless he first obtains a certificate of appealability ( COA ). See 28 U.S.C. § 2253(c). To be entitled to a COA, Dickinson m ust show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. M cDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court dism isses a habeas petition on procedural grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists w ould find it debatable w hether he had stated a valid constitutional claim and debatable whether the district court s procedural ruling was correct). Dickinson has provided documentation he attempted to file a mandamus petition with the New M exico Suprem e Court but the clerk refused to accept it. In the m andam us petition, Dickinson sought an injunction prohibiting the state trial judge from determ ining his competency to stand trial until the judge ruled on an outstanding m otion. In an amendment to the mandamus petition, Dickinson raised many of the claim s asserted in his § 2241 application. The clerk of the -2- New M exico Supreme Court refused to file the mandamus petition, advising Dickinson [t]he requested relief is not appropriate for an extraordinary writ, but rather on appeal after the final judgm ent is issued. H aving reviewed Dickinson s m andam us petition and the am endm ent thereto, we conclude it did not fairly present the claim s Dickinson seeks to raise in his § 2241 application. See Castille v. Peoples, 489 U.S. 346, 351 (1989) ( [W ]here the claim has been presented for the first and only time in a procedural context in which its m erits will not be considered unless there are special and important reasons therefor, [r]aising the claim in such a fashion does not, for the relevant purpose, constitute fair presentation. (citation and quotations om itted)). Thus, the state court s refusal to file Dickinson s mandam us petition does not affect the district court s conclusion Dickinson has failed to exhaust his state rem edies. Our review of the record demonstrates the district court s dism issal of Dickinson s § 2241 application is not deserving of further proceedings or subject to a different resolution on appeal. Accordingly, this court denies Dickinson s application for a certificate of appealability and dism isses this appeal. Dickinson s m otion to proceed in forma pauperis on appeal is granted. Entered for the Court ELISA BETH A. SH UM AKER, Clerk By Deputy Clerk -3-
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