                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 28 1997
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


JOHN PAUL HANEY, JR.,

          Petitioner-Appellant,

v.                                                     No. 96-5246
                                                 (N. District of Oklahoma)
TULSA COUNTY DISTRICT                             (D.C. No. 96-C-781-H)
COURT, sued as Tulsa Co. Tulsa
Oklahoma State of Oklahoma,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      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. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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.
      Petitioner John P. Haney filed the instant habeas corpus petition pursuant to

28 U.S.C. § 2241(c)(3) on August 23, 1996. Haney sought to attack felony

charges that were presently pending against him in state district court. Haney

contended that the Tulsa Police Department violated his constitutional rights

during an initial interrogation. He further alleged that he was forced to provide

samples of his hair and body fluids pursuant to a court order. The district court

dismissed the petition without prejudice on the grounds that Haney had not

exhausted his state remedies. See Coleman v. Thompson, 501 U.S. 722, 731

(1991) (holding that a “state prisoner’s federal petition should be dismissed if the

prisoner has not exhausted available state remedies as to any of his federal

claims”). The district court also denied Haney’s subsequent request for a

certificate of appealability. 1 See 28 U.S.C. § 2253 (providing that “an appeal may

not be taken to the court of appeals from the 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 certificate of appealability).

Haney now requests a certificate of appealability from this court.


      1
        The district court did not deny Haney’s request for a certificate of
appealability on the merits but, instead, denied the request on the grounds that
district courts are without subject matter jurisdiction to grant certificates of
appealability. After the district court’s denial of the certificate of appealability,
this court held that district courts do have the power to grant certificates of
appealability, at least where detention complained of arises out of process issued
by a state court. Houchin v. Zavaras, 107 F.3d 1465, 1468-69 (10th Cir. 1997).

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      A habeas petitioner is entitled to a certificate of appealability only upon a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). This court has held that the Standard for granting a certificate of

appealability under the § 2253(c) is the same standard set out by the Supreme

Court in Barefoot v. Estelle, 463 U.S. 880 (1983). Lennox v. Evans, 87 F.3d 431,

434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part on

other grounds by, Lindh v. Murphy, 117 S. Ct. 2059 (1997). Under the Barefoot

standard, a certificate of appealability will issue only where the petitioner has

demonstrated the issues raised are (1) debatable among jurists of reason, (2) a

court could resolve the issues differently, or (3) the questions presented are

deserving of further proceedings. 463 U.S. at 893 n.4.

      This court has reviewed the district court’s order, Haney’s brief and

application for a certificate of appealability, and the entire record before us on

appeal. In light of that review, we conclude that Haney has failed to make a

“substantial showing of the denial of a constitutional right” for substantially the

reasons set for in the district court’s order dated October 8, 1996. In particular,

we note that Haney never argues that his claims are indeed exhausted or that he is

somehow excused from the exhaustion requirements. In fact, he simply ignores

the issue and states in the most general and incomprehensible terms that the State

of Oklahoma is violating his constitutional rights during the process of


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investigating him as a criminal suspect. Accordingly, this court DENIES Haney

a certificate of appealability and DISMISSES the appeal.

                                            ENTERED FOR THE COURT:



                                            Michael R. Murphy
                                            Circuit Judge




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