                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    September 20, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



LAR RY PRICE,

       Petitioner-A ppellant,
                                                        No. 06-3083
v.
                                                     (District of K ansas)
                                                 (D.C. No. 05-CV-3328-SAC)
CHARLES E. SIM M ONS, Secretary of
Corrections,

       Respondent-Appellee.




                                     ORDER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      This matter is before the court on Larry Price’s pro se request for a

certificate of appealability (“COA”). Price also requests permission to proceed

on appeal in form a pauperis. Price, a state prisoner, seeks a COA so he can

appeal the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition.

28 U.S.C. § 2253(c)(1)(A ); M ontez v. M cKinna, 208 F.3d 862, 867 (10th Cir.

2000). Because Price has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), this court denies his request for a
COA and dismisses this appeal. His request to proceed on appeal in forma

pauperis is likewise denied.

      Price is currently incarcerated in California state prison on a conviction of

possession of cocaine base with intent to distribute. Kansas has lodged a detainer

with California corrections officials, so that at the completion of his incarceration

in California, Price will be returned to Kansas to face parole revocation

proceedings. Price filed the instant § 2241 habeas petition in the United States

District Court for the District of Kansas challenging the detainer. 1 In his § 2241

habeas petition, Price asserted he was entitled to a final hearing before the Kansas

parole board on the validity and propriety of the revocation of his parole.

      In response to Price’s § 2241 habeas petition, the district court issued an

order to show cause, directing Price to demonstrate he had exhausted his state-

court remedies. M ontez, 208 F.3d at 866 (“A habeas petitioner is generally

required to exhaust state remedies whether his action is brought under § 2241 or

§ 2254.”). Price filed a response to the order to show cause demonstrating he had

sought relief in Kansas state court. Those same filings further demonstrated,

however, that Price failed to appeal the adverse decision of the state trial court.

See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (holding that exhaustion of



      1
        Price properly brought his challenge to the detainer in Kansas and the
district court had jurisdiction over the petition. Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 499-501 (1973); M ontez v. M cKinna, 208 F.3d 862,
867 n.6 (10th Cir. 2000).

                                         -2-
state remedies requires a petitioner to properly present the same claims set out in

the federal habeas petition to the highest state court on direct appeal or in a state

post-conviction proceeding). Price sought to excuse his failure to comply with

O’Sullivan by asserting he w as led astray about his state remedies by the adverse

ruling in the state trial court and by the arguments of the Kansas Assistant

Attorney General before the state trial court.

      The district court began by noting Price had not properly exhausted his

state remedies because he failed to appeal the denial of his state petition for post-

conviction relief. See id. The district court concluded Price could not use his

belief that he would not prevail in the Kansas appellate courts as an excuse to

avoid exhausting his state court remedies, as such a result would render

O’Sullivan a dead letter. See Rose v. Lundy, 455 U.S. 509, 518 (1982) (noting

that exhaustion requirement is an essential component of the doctrine of comity

and judicial economy). The district court further concluded Price’s failure to

seek appellate review in state court constituted a procedural default of his claims.

O’Sullivan, 526 U.S. at 848; Coleman v. Thom pson, 501 U.S. 722, 731-32 (1991).

Applying Coleman’s cause-and-prejudice test for overcoming procedural default,

501 U.S. at 750, the district court concluded Price could not demonstrate cause to

overcome his procedural default because it was apparent from the record that

Price simply chose not to pursue otherw ise-available state court remedies.

Accordingly, the district court denied Price’s petition.

                                          -3-
      To be entitled to a COA, Price must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

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 that the issues presented were adequate to deserve encouragement to

proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Price has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Price need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Price’s application for a COA and appellate

filings, the district court’s order, and the entire record before this court pursuant

to the framew ork set out by the Supreme Court in M iller-El, we conclude Price is

not entitled to a COA. The district court’s resolution of Price’s § 2241 petition is

not reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. Accordingly, this court DENIES Price’s

request for a COA and DISM ISSES this appeal. Price’s motion to proceed in




                                          -4-
form a pauperis is likewise DENIED. Price is directed to remit the full amount of

the appellate filing fee w ithin twenty days.

                                        Entered for the Court
                                        ELISABETH A. SHUM AKER, Clerk


                                        By
                                                Deputy Clerk




                                          -5-
