F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOE F. FULLER,
Petitioner-Appellant,
v.
No. 03-3346
(District of Kansas)
LEROY GREEN, Sheriff;
(D.C. No. 03-CV-3178-SAC)
WYANDOTTE COUNTY JAIL;
INTEGRITY CORRECTIONAL
CENTER; CHARLIE TURBO,
Respondents-Appellees.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
This matter is before the court on Joe Floyd Fuller’s request for a
certificate of appealability (“COA”). Fuller seeks a COA so that he can appeal
the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition. 28
U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final
order in a habeas corpus proceeding in which the detention complained of arises
out of process issued by a State court,” unless the petitioner first obtains a COA);
Montez v. McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000) (holding that state
prisoners proceeding pursuant to § 2241 must obtain a COA before appealing the
denial of habeas relief). Because Fuller has not “made a substantial showing of
the denial of a constitutional right,” id. § 2253(c)(2), this court denies his request
for a COA and dismisses this appeal.
It is far from clear what Fuller was seeking in the district court or is
seeking before this court. Fuller filed the instant habeas petition on a 28 U.S.C. §
2254 form provided by the United States District Court for the District of Kansas.
As the only ground for relief set out in his petition, Fuller asserted that he “has
been kidnaped in the night and sent to the state of Missouri without the Uniform
Extradition Act.” In support of this claim, Jones set out the following supporting
facts:
Petitioner has never been taken in front of a judge to sign
extradition from Kansas to Missouri or any other state.
Petitioner has been kidnaped from one state to another and
now request that his body be released from custody for lack of
jurisdiction and violation of petitioner’s 14th Amendment.
Because it did not appear that Fuller was incarcerated pursuant to a judgment of a
state court, but was instead a pretrial detainee, the district court liberally
construed Fuller’s petition as having been filed pursuant to 28 U.S.C. § 2241. See
Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir. 2001) (explaining that a state
court defendant held pursuant to a state court judgment should file a habeas
petition under 28 U.S.C. § 2254, but that a state court defendant attacking his
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pretrial detention should bring a habeas petition under 28 U.S.C. § 2241);
Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (same).
So construed, the district court concluded that Fuller was not entitled to
habeas relief. The district court first noted that after filing his petition, Fuller
was transferred back to Texas. Accordingly, the conditions giving rise to Fuller’s
habeas petition no longer existed. The district court further noted that Fuller did
not have a valid claim under the Uniform Extradition Act because he was sent to
Missouri merely for the purpose of detention, not for the purpose of facing
criminal charges or prosecution in Missouri. Finally, the district court concluded
that Fuller’s transfer to Missouri, standing alone, did not entitle him to release
from custody because Fuller had no constitutional right to be incarcerated in any
particular state. Olim v. Wakinekona, 461 U.S. 238, 245 (1983).
To be entitled to a COA, Fuller must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Fuller can make the
requisite showing by demonstrating “that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In evaluating whether Fuller has satisfied
his burden, this court undertakes “a preliminary, though not definitive,
consideration of the [legal] framework” applicable to each of his claims.
Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (quotations omitted).
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Although Fuller need not demonstrate his appeal will succeed to be entitled to a
COA, he must “prove something more than the absence of frivolity or the
existence of mere good faith.” Id.
Having undertaken a review of Fuller’s application for a COA and appellate
filings, the district court’s order, and the entire record before this court pursuant
to the framework set out by the Supreme Court in Miller-El, this court concludes
that Fuller is not entitled to a COA. The district court’s resolution of Fuller’s
habeas petition is not reasonably subject to debate and the issues he seeks to raise
on appeal are not adequate to deserve further proceedings. Accordingly, this
court DENIES Fuller’s request for a COA and DISMISSES this appeal.
Entered for the Court
PATRICK FISHER, Clerk of Court
By:
Deputy Clerk
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