                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 3, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 KEV IN HARR IS,

                 Petitioner-A ppellant,                  No. 07-3049
          v.                                             (D . of Kan.)
 RAY ROBERTS, W arden,                           (D.C. No. 06-CV-3326-SAC)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Kevin Harris, proceeding pro se, files this petition for a writ of habeas

corpus under 28 U.S.C. § 2254. In his petition, Harris makes tw o claims. First,

he asserts that the Kansas courts are denying him the right to appeal the

resolution of state criminal charges filed against him in Reno County, Kansas,

Case No. 04-CR-1034. He states that the 2004 charges were dismissed without




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         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.
prejudice and that he filed an appeal in the matter w hich was never docketed in

the Kansas appellate courts. Second, Harris seeks to enjoin the prosecution of

similar charges filed against him in Case No. 05-CR-982. Harris argues that

prosecution on the re-filed charges violates his constitutional and statutory rights

to a speedy trial.

                                            I.

       W ith respect to the first claim, the district court held that Harris is entitled

to no relief. Under 28 U.S.C. § 2254(b)(1), a petitioner seeking habeas relief

must be “in custody pursuant to the judgment of a State court.” W e agree. Since

Harris is not a person “in custody” pursuant to a state court judgment, § 2254 is

inapplicable to his first claim.

                                           II.

       To the extent Harris’s second claim seeks prejudgment relief from

confinement due to pending charges in Case No. 05-CR-982, the district court

liberally construed his habeas petition as filed under 28 U.S.C. § 2241. Under

§ 2241, exhaustion of state remedies is required absent a showing of futility.

Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).

       The district court held that Harris failed to comply with the exhaustion

requirement because Kansas state courts have not yet ruled on Harris’s claim.

First, the district court found that Harris abandoned his appeal in the matter of

Case No. 04-CR-1034 under K ansas law. See Kansas Supreme Court Rule 5.051

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(failure to docket appeal in compliance with Rule 2.04 is to be presumed an

abandonment of the appeal). To the extent Harris contends that the failure to file

an effective appeal was due to ineffective assistance of counsel, he must first

present those claims to Kansas state courts. Second, the district court found that

Harris must first challenge any statutory or constitutional “speedy trial” violations

in the State’s re-filing of charges in Case No. 05-CR-982 during the pendency of

that case in state court. Since an adequate state remedy exists for Harris’s claim,

the district court dismissed his habeas petition without prejudice. W e also agree,

for the reasons identified by the district court.

      Having reviewed the record, we are convinced that no “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). Accordingly, we DENY

Harris a certificate of appealability and dismiss this petition.

                                         Entered for the Court,

                                         Timothy M . Tymkovich
                                         Circuit Judge




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