                                                                         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




                                          -3-
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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