F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAY 30 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
MONDRAY JEFFERSON,
Petitioner-Appellant,
v. No. 96-1278
(D.C. No. 95-D-3256)
ROBERT FURLONG, ATTORNEY (Colorado)
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO 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); 10th Cir. R. 34.1.9. The cause 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This order and judgment is not binding precedent, except under the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.
Petitioner Mondray Jefferson filed an application for a writ of habeas
corpus under 28 U.S.C. § 2254 alleging that he had been denied his constitutional
rights to due process, equal protection, and effective assistance of counsel by the
delay in his right to appeal his underlying state conviction. Upon recommenda-
tion of the magistrate judge, the district court dismissed the action without
prejudice for failure of Mr. Jefferson to exhaust state remedies. The court then
denied Mr. Jefferson’s request for a certificate of appealability. The district court
also denied leave to file an appeal without payment of fees under 28 U.S.C. §
1915, as amended by the Prison Litigation Reform Act, because Mr. Jefferson
failed to submit a certified trust account statement.
We grant Mr. Jefferson’s request to proceed on appeal without payment of
fees. As we held recently in United States v. Simmonds, No. 96-3287, 111 F.3d
737 (10th Cir. 1997), a section 2254 habeas corpus action is not a civil action as
contemplated by the Prison Litigation Reform Act, and Mr. Jefferson is not
required to submit a certified statement of his trust account.
After reviewing the record in light of Mr. Jefferson’s contentions, however,
we deny his motion for a certificate of appealability. For the reasons set forth in
the district court’s Order Adopting Magistrate Judge’s Recommendation, we agree
with the district court that Mr. Jefferson has failed to exhaust available state court
remedies, a prerequisite to bringing this action. Since Mr. Jefferson may obtain
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relief in state court, he has not yet made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253.
Accordingly, we DENY Mr. Jefferson’s application for a certificate of
appealability and we DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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