FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 21, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
DARRIS COLTON THOMAS, JR.,
Petitioner - Appellant,
No. 19-3275
v. (D.C. No. 5:19-CV-03235-SAC)
(D. Kan.)
PATRICK H. THOMPSON, Judge,
Saline County,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
Darris Colton Thomas, a Kansas state prisoner proceeding pro se, seeks to
appeal the district court’s dismissal without prejudice of his 28 U.S.C. § 2241
petition. The matter is before this court on his request for a certificate of
appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing 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, 869 (10th Cir. 2000)
(holding § 2253(c)(1)(A) applies when a state habeas petitioner is proceeding
under § 2241). Because Thomas has not made a “substantial showing of the
denial of a constitutional right,” this court denies his request for a COA and
dismisses this appeal. 28 U.S.C. § 2253(c)(2).
Thomas, who is currently incarcerated in the Saline County Jail following a
criminal conviction in Kansas state court, filed the underlying § 2241 petition to
challenge a detainer lodged against him under the Kansas Sexually Violent
Predator Act (“KSVPA”), Kan. Stat. Ann. § 59-29a01 to 59-29a27. 1 The district
court noted that an action concerning Thomas’s potential commitment under the
KSVPA is currently pending in Kansas state court. Accordingly, shortly after the
case was opened, the district court issued an order to Thomas to show cause why
the matter should not be dismissed for failure to exhaust state court remedies. See
Montez, 208 F.3d at 866 (holding that a state prisoner seeking federal habeas
corpus relief under § 2241 must exhaust available state remedies). After
receiving Thomas’s response, the district court dismissed the matter without
prejudice because Thomas did not offer any reason to excuse him from the
exhaustion requirement. Thomas appeals.
1
The KSVPA establishes procedures for the civil commitment of persons
who, due to a “mental abnormality” or a “personality disorder,” are likely to
engage in “predatory acts of sexual violence.” Kan. Stat. Ann. §§ 59-29a01 to
59-a27. For an extensive discussion of how the KSVPA operates, see Kansas v.
Hendricks, 521 U.S. 346 (1997).
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A COA may issue if Thomas “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he
must demonstrate “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or . . . the
issues presented were adequate to deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation omitted). Thomas has
failed to make the requisite showing. The district court’s without-prejudice
dismissal of Thomas’s § 2241 petition is indisputably correct. Thomas did not
offer the district court any reason excusing his failure to exhaust his state court
remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (holding
that it is a habeas petitioner’s burden to show he is excused from exhausting
available state court remedies). Nor, to the extent we can understand them, do his
appellate filings excuse his failure to exhaust. This is especially true given the
comprehensive nature of the civil commitment proceedings mandated by the
KSVPA. See Kan. Stat. Ann. §§ 59-29a01 to 59-a27; Kansas v. Hendricks, 521
U.S. 346 (1997); see also Miranda, 967 F.2d at 398 (“[T]o satisfy the exhaustion
requirement, a federal habeas corpus petitioner must show that a state appellate
court has had the opportunity to rule on the same claim presented in federal court
or that at the time he filed his federal petition, he had no available state avenue of
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redress.” (citation omitted)). Thus, this court DENIES Thomas’s request for a
COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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