Arter v. Gentry

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

JEFFREY A. ARTER,

Petitioner-A ppellant, No. 06-7044
v. (E.D. of Okla.)
ROY GENTRY, LeFlore County (D.C. No. CV -04-574-FHS)
Sheriff,

Respondent-Appellee.

OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **

Jeffrey Arter seeks habeas relief from pretrial detention in an Oklahoma

state jail. At the time he filed his petition, Arter w as incarcerated in the LeFlore

County Jail in Poteau, Oklahoma. He is awaiting trial on several state drug

charges and three counts of shooting with intent to kill. The charges against him

also allege that he has three prior felony convictions.

*
This order is not binding precedent, except under the doctrines of law of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.
 Arter filed a petition for a writ of habeas corpus in district court under 28

U.S.C. § 2254, which the court construed as (1) challenging the validity of the

prior convictions, (2) asserting his bail of $1,150,000 was excessive, and (3)

complaining about possible competency proceedings. The district court denied

his petition, and he renews on appeal his request that the federal courts order the

dismissal of the pending state charges against him.

Arter is a pretrial detainee, so the district court properly construed his

§ 2254 claim as one under § 2241. See Jacobs v. M cCaughtry, 251 F.3d 596,

597–98 (7th Cir. 2001); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998).

A state prisoner must obtain a Certificate of Appealability (COA) to appeal denial

of a habeas petition, whether such petition was filed pursuant to § 2241 or § 2254.

M ontez v. M cKinna, 208 F.3d 862, 867 (10th Cir. 2000). 1 The district court

denied habeas relief, finding Arter failed to exhaust his state court remedies, and,

since it did not issue a COA, the C OA is deemed denied. 10th Cir. R. 22.1(C).

“A threshold question that must be addressed in every habeas case is that of

exhaustion.” Harris v. Champion, 15 F.3d 1538. 1554 (10th Cir. 1994). Courts

may raise the issue of exhaustion on their own motion. Steele v. Young, 11 F.3d

1518, 1523 n.10 (10th Cir. 1993). In dismissing the petition, the district court

properly noted that 1) Arter had failed to allege exhaustion of his state remedies,

1
Even the dissent in M ontez agreed that when the habeas petition arose
from a pretrial detainee, a COA is required. 208 F.3d at 870 (M cKay, J.,
dissenting).

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2) state habeas relief was available to him, and 3) the Younger abstention

doctrine, Younger v. Harris, 401 U.S. 37 (1971), compels us to avoid

interference in ongoing state proceedings when the state courts provide an

adequate forum to present any federal constitutional challenges. W e agree with

these conclusions.

A ccordingly, for the same reasons set forth by the district court, we DEN Y

habeas relief on the grounds that Arter has not exhausted his state court remedies,

we DENY his petition for COA, and we GRANT Appellee’s M otion to D ismiss. 2

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

2
W e also dismiss Appellant’s notices received by this court on
September 28 and October 11, 2006.

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