F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 3 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANDREW JOHN YELLOWBEAR,
JR.,
No. 04-8120
Petitioner-Appellant,
v. (D. of Wyo.)
WYOMING ATTORNEY GENERAL; (D.C. No. 04-CV-243-B)
SKIP HORNECKER, in his official
capacity as Supervisor, Fremont
County Detention Center,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Petitioner-Appellant Andrew John Yellowbear, a state prisoner appearing
pro se, presents three claims in his appeal from the District of Wyoming. He is
currently awaiting trial in the Ninth Judicial District of Wyoming for the murder
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order 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.
of his minor daughter. He argues that the State of Wyoming does not have
jurisdiction over him; that tribal courts violated his due process rights; and that
the state improperly denied him discovery. The district court did not act on the
issue of certificate of appealability (“COA”). Pursuant to the General Order of
October 1, 1996, under these circumstances COA is deemed denied.
The parties are familiar with the facts, and we need not restate them here.
After our review of the materials submitted by Mr. Yellowbear against the
backdrop of his state court record, it is apparent the conclusions of the district
court are simply not debatable. As the district court explained, Mr. Yellowbear is
a prisoner in pre-conviction custody and is therefore unable to rely upon 28
U.S.C. § 2254, which is a vehicle intended only for state court prisoners who have
already been convicted to contest the legality of their convictions. He has also
failed to meet the exhaustion requirements of § 2254 because he has failed to first
bring his claims to state authorities.
Mr. Yellowbear is likewise ineligible for habeas corpus relief under 28
U.S.C. § 2241. Although § 2241 is generally available to prisoners who have not
yet been tried, Mr. Yellowbear has not exhausted his remedies at the state court
level. We recognize § 2241 does not contain an explicit exhaustion requirement
as § 2254 does. However, because Mr. Yellowbear raises no credible federal
constitutional claim, it is not inconsistent with § 2241 or our habeas corpus
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precedent to follow the exhaustion policy of § 2254 in this case. See Montez v.
McKinna , 208 F.3d 862, 866 (10th Cir. 2000) (requiring exhaustion for § 2241
habeas claims).
On appeal, Mr. Yellowbear has also filed a “motion for a restraining order”
and a “motion for sanctions.” These issues were not presented at the district
court, and we need not address them here. See King v. United States , 301 F.3d
1270, 1274 (10th Cir. 2002) (as a general rule, “this court will not consider an
issue on appeal that was not raised below.”) Furthermore, like his other
arguments, Mr. Yellowbear’s new motions present no recognizable habeas corpus
claim and have not been fully exhausted at the state court level.
Accordingly, we agree with the district court that Mr. Yellowbear has failed
to state a recognizable habeas corpus claim, and we DENY COA and DISMISS
the case. We also DENY Mr. Yellowbear’s “motion for a restraining order” and
his “motion for sanctions.”
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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