                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 12 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

CHRISTOPHER WEATHERALL,

             Petitioner - Appellant,

v.                                                      No. 02-1458
                                                     D.C. No. 02-Z-1726
LARRY REID; ATTORNEY                                   (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,

             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case 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       This order and judgment is not binding precedent, except under the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.
       On September 10, 2002, pro se petitioner, Christopher Weatherall, filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal

district court. The district court dismissed the § 2254 petition without prejudice.

Weatherall now seeks a certificate of appealability (“COA”) from this court so he

can appeal the dismissal of his § 2254 petition.   See 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from a final order disposing of a § 2254

petition unless the petitioner first obtains a COA).

       Weatherall raised three claims in his § 2254 petition: (1) he was the object

of a malicious prosecution, (2) he was constructively denied counsel, and (3) his

direct appeal was “sabotaged.” Weatherall asserted that he sought post-

conviction relief in the Colorado state courts and further conceded that those

state court proceedings are still pending. In his § 2254 petition, Weatherall

requested the district court to excuse him from the requirement of exhausting his

state remedies and address the merits of the claims raised in the petition.

Weatherall asserted that his failure to exhaust state remedies was the result of an

lengthy and ongoing “scheme carried out by agents and cohorts of the state” of

Colorado designed to deprive him of his liberty, deny him relief, and prejudice

his claims. The district court rejected Weatherall’s arguments and dismissed his

§ 2254 petition without prejudice for failure to exhaust the three claims raised in

the petition. See Miranda v. Cooper , 967 F.2d 392, 398 (10th Cir. 1992).


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       “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.”   Slack v. McDaniel , 529 U.S.

473, 484 (2000). After consideration of Weatherall’s request for a COA and

appellate brief, and a de novo review of the record, this court concludes that the

district court’s conclusion that Weatherall’s § 2254 petition should be dismissed

for failure to exhaust state remedies is not reasonably debatable. Accordingly,

Weatherall has not made “a substantial showing of the denial of a constitutional

right” and he is not entitled to a COA. Accordingly, this court    denies

Weatherall’s request for a COA for substantially those reasons set forth in the

district court’s order dated September 27, 2002 and      dismisses this appeal.

Weatherall’s request to proceed      in forma pauperis on appeal is denied . His

Motion to Show Cause is dismissed as moot.

                                           ENTERED FOR THE COURT



                                           Michael R. Murphy
                                           Circuit Judge



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