F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 6 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VERNON NORMAN EARLE,
Petitioner - Appellant,
v. No. 01-2369
D.C. No. CIV-01-158 JP/LFG
IMMIGRATION AND (D. New Mexico)
NATURALIZATION SERVICE; DON
STEWART, Warden, Torrance County
Correctional Facility,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case 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This order and judgment is not binding precedent, except under the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.
Vernon Norman Earle appeals from the dismissal of his petition for habeas
corpus brought pursuant to 28 U.S.C. § 2241. Although he is currently
incarcerated in a federal facility pursuant to a deportation order, Mr. Earle is
serving state sentences for murder and other crimes and is considered to be a state
prisoner for the purpose of applying 28 U.S.C. § 2253(c)(1)A) (providing that a
state prisoner must be granted a certificate of appealability (COA) to appeal “the
final order in a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court”). See Montez v. McKinna , 208 F.3d
862, 867 (10th Cir. 2000) (applying § 2253(c)(1)(A) to state prisoners applying
for relief under § 2241).
To be entitled to a COA, Mr. Earle must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this
showing by demonstrating that “reasonable jurists would find the district court’s
assessment of [his] constitutional claims debatable or wrong,” or that the
questions presented deserve further proceedings. Slack v. McDaniel , 529 U.S.
473, 483-84 (2000).
Mr. Earle based his habeas claim on a lack of due process, alleging that his
deportation proceedings were unlawfully initiated before the appeal of his
criminal convictions was final, and that the Immigration and Naturalization
Service failed to follow regulations. The relief he sought was issuance of an
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order requiring his immediate deportation so that he would not be required to
complete his state-ordered prison terms. The district court held that it had no
“jurisdiction to order that [Mr.] Earle’s [state] sentence be cut short so that he
may be deported immediately.” R. Doc. 20 at 2. Mr. Earle gives no cogent
reason supported by relevant legal authority why this ruling is erroneous. For
substantially the same reasons recommended by the magistrate judge and adopted
by the district court in its November 16, 2001 order, we conclude that Mr. Earle
cannot make the requisite showing to establish his right to appeal from the court’s
denial of his petition, and we therefore deny his request for a COA.
Mr. Earle filed a “Motion to Please Take Judicial Notice” in which he
challenges what he characterizes as the district court’s “change [of] title” of his
petition brought pursuant to § 2241 into a petition brought pursuant to 28 U.S.C.
§ 2255. We note that the district court simply made a typographical error in its
order issued January 4, 2002, when it stated that Mr. Earle’s habeas petition was
brought under § 2255. In the same order, the district court refused to alter or
amend its original judgment, which clearly denominated the petition as one
brought pursuant to § 2241. The motion to take judicial notice is DENIED.
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We DENY the request for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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