                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            DEC 14 2004

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk



 ROY DON ROBERTSON,

          Plaintiff-Appellant,
                                                        No. 04-4156
 v.                                              (D.C. No. 2:04-CV-400-TS)
                                                           (Utah)
 STATE OF UTAH,

          Defendant-Appellee.



                                     ORDER *


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


      Roy Don Robertson, a state prisoner proceeding pro se, applies for a

certificate of appealability (COA) to challenge the district court’s denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2254. Mr. Robertson also

seeks leave to proceed in forma pauperis (ifp) on appeal. Exercising jurisdiction

under 28 U.S.C. § 2253(c)(1), and construing Mr. Robertson’s pro se application

liberally, Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), we see no basis



      After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
for appeal and deny COA and the request to proceed ifp.

      Mr. Robertson was convicted of aggravated burglary, unlawful possession

of a controlled substance, and aggravated assault in Utah state court. He was

sentenced to serve five years to life and his case is currently being reviewed by

the Utah Court of Appeals. Mr. Robertson nonetheless filed a § 2254 petition in

federal court, alleging violations of the Fifth Amendment’s prohibition against

double jeopardy and his Sixth Amendment right to effective assistance of counsel,

and contending that the court which sentenced him lacked jurisdiction to do so.

The district court rejected his petition on the ground that Mr. Peterson had not yet

exhausted his state court remedies.

      Section 2254(b) mandates that “[a]n application for a writ of habeas corpus

on behalf of a person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that the applicant has exhausted the remedies

available in the courts of the State . . . .” § 2254(b)(1)(A). See also Moore v.

Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002). In his § 2254 petition, Mr.

Robertson acknowledged that he has an appeal pending in state court. Rec., doc.

3 at 2. The district court held that “[o]n the basis of failure to exhaust, then, this

federal petition is barred because of Petitioner’s pending [state court] appeal.”

Rec., Vol. I, doc. 10 at 2. The court dismissed Mr. Robertson’s § 2254 petition

without prejudice.


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      Issuance of a COA is jurisdicitional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2254(c)(2). When a

district court has dismissed a habeas petition on procedural grounds, a certificate

will issue when “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). Having reviewed the district court’s ruling, the record on appeal, and Mr.

Robertson’s submissions to us, we conclude that jurists of reason would not find

debatable the district court’s ruling that Mr. Robertson had not yet exhausted his

state court remedies.

      We DENY Mr. Robertson’s requests for a COA and to proceed ifp, and we

DISMISS the appeal.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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