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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.(**)
Petitioner-Appellant Jerry Hobson King, an inmate appearing pro se, seeks
to appeal the district court's dismissal of his petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. The district court, adopting the magistrate
judge's Report and Recommendation, dismissed Mr. King's petition because he
was not "in custody" for purposes of reviewing his conviction and because, in the
alternative, he has failed to exhaust state court remedies are required by 28
U.S.C. § 2254(b)(1)(A). Mr. King appeals and requests a certificate of
appealability. We deny Mr. King's request for a COA and dismiss the appeal. We do not
need to reach the question of whether Mr. King is "in custody."
Under 28 U.S.C. § 2254(b)(1)(A), a habeas corpus petitioner generally must
exhaust state court remedies prior to filing such a petition with the federal court.
A state prisoner bringing a federal habeas corpus action bears the burden of
showing that he has exhausted all available state remedies. See Miranda v.
Cooper, 967 F.2d 392, 398 (10th Cir. 1992). The state will not waive
exhaustion, nor has Mr. King demonstrated it. Therefore, we DENY Mr. King's
request for a certificate of appealability and DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**. After examining the briefs and the
appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral
argument.
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