                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 25, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 JOHN D. KELSO,

             Petitioner-Appellant,                      No. 08-6224
 v.                                            Western District of Oklahoma
 CARLOS LUNA, EDMUND A.                        (D.C. No. 5:08-CV-00731-D)
 BROWN and JERRY BROWN,

             Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.



      John D. Kelso, a resident of California’s Patton State Hospital, proceeding

pro se, seeks a certificate of appealability (“COA”), which would allow him to

appeal from the district court’s order denying his habeas corpus petition under 28

U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that Mr.

Kelso has failed to make “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss the

appeal.




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   I. Background

      Mr. Kelso filed this action pro se in the district court, seeking a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed, holding

that Mr. Kelso failed to allege facts sufficient to establish jurisdiction over the

respondents. The district court further held that transferring this action to another

district court pursuant to 28 U.S.C. § 1631 was inappropriate under the factors we

outlined in Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006).

                                   II. Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate “that reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      District courts can grant habeas corpus relief only “within their respective

jurisdictions.” 28 U.S.C. § 2241(a). This requires that a district court have

jurisdiction over the plaintiff’s custodian, Rumsfeld v. Padilla, 542 U.S. 426, 442

(2004), who in this case is Carlos Luna, the Executive Director of the Patton State

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Hospital. Mr. Kelso’s only jurisdictional arguments on appeal are that he is an

Oklahoma native and that there are a number of “Oklahoma defendants,” whom

Mr. Kelso names in his brief but who are not the defendants in this case. Whether

Mr. Kelso is an Oklahoma native is irrelevant to the question of whether the

district court has jurisdiction over the defendants in this matter. Likewise,

whether the third party “Oklahoma defendants” are somehow connected with

Oklahoma does nothing to establish jurisdiction over the defendants in this

matter. Therefore, having provided no evidence of any connection between the

defendants here and the state of Oklahoma, Mr. Kelso has failed to establish a

basis on which jurisdiction can be granted.

      Mr. Kelso does not appear to make any argument on appeal as to why the

district court should have transferred this matter rather than dismissed it.

Transferring a case to another court rather than dismissing it is appropriate only

“if it is in the interest of justice.” 28 U.S.C. § 1631; see also Trujillo, 465 F.3d at

1222 (“Although . . . § 1631 contain[s] the word ‘shall,’ we have interpreted the

phrase ‘if it is in the interest of justice’ to grant the district court discretion in

making a decision to transfer an action . . . .”). We have previously recognized

the broad support that exists for the proposition that “it is not in the interest of

justice to transfer where a plaintiff either realized or should have realized that the

forum in which he or she filed was improper.” Trierweiler v. Croxton & Trench

Holding Corp., 90 F.3d 1523, 1544 (10th Cir. 1996) (neither adopting nor

                                            -3-
rejecting this rule); see also Trujillo, 465 F.3d at 1223 n.16 (noting that one of the

“factors warranting transfer rather than dismissal” is if “the original action was

filed in good faith rather than filed after ‘plaintiff either realized or should have

realized that the forum in which he or she filed was improper’” (quoting

Trierweiler)); Keaveney v. Larimer, 242 F.3d 389 (Table), 2000 WL 1853994, at

**1 (10th Cir. Dec. 19, 2000) (relying exclusively on this rule to affirm a district

court’s dismissal rather than transfer of a case). There can be no doubt that Mr.

Kelso should have realized that Oklahoma was an improper forum because an

action he had previously filed against Mr. Luna in Oklahoma was dismissed, at

least in part, for lack of jurisdiction. See Kelso v. Miller, No. 5:08-cv-00366-F,

2008 WL 2961996, at *4–5 (W.D. Okla. July 29, 2008), aff’d, 2008 WL 5220651

(10th Cir. Dec. 16, 2008). The district court therefore properly decided that this

was not an appropriate case for transfer.

                                   III. Conclusion

      Because reasonable jurists could not debate that the district court resolved

this matter appropriately and because the issues presented are not adequate to

support encouragement of further proceedings, we DENY Mr. Kelso’s request for

a COA and DISMISS this appeal.

                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge


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