                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 3, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 RAITHIELE JON ROBINSON,

       Petitioner - Appellant,

 v.                                                          No. 18-7065
                                                (D.C. No. 6:18-CV-00099-RAW-KEW)
 EDDY RICE, Okmulgee County Sheriff,                         (E.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Petitioner Raithiele Jon Robinson, a pretrial detainee at Moore Detention

Center (commonly known as the Okmulgee County Jail), filed a habeas petition

pursuant to 28 U.S.C. § 2241. He seeks dismissal of his pending state criminal

charges and release from custody. The petition asserts four grounds for relief:1

      (1) Unlawful search and arrest and/or Miranda violations.

      (2) Defects in the state court charging document.

      (3) Speedy trial violation.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         These grounds for relief are not clearly articulated, so we paraphrase.
       (4) The state of Oklahoma lacks jurisdiction because Robinson is a member of

       the Muscogee (Creek) Nation and the alleged crimes took place on Muscogee

       (Creek) land.

ROA at 9–11. The petition also asserts that Robinson’s state-appointed attorney

“only comes to court,” “has not visited [Robinson] ever at the jail to discuss [his]

case,” and “doesn’t return [Robinson’s] letters” or his family’s phone calls. Id. at 11.

       The district court dismissed the petition for failure to exhaust state court

remedies. ROA at 204–05. The district court also concluded that it was required to

abstain from interfering in the pending state criminal prosecution under Younger v.

Harris, 401 U.S. 37 (1971). Id. at 205–06. Finally, the district court found that

Robinson had not shown that he was entitled to a certificate of appealability. Id. at

206.

                                             I.

       A state prisoner pursuing a § 2241 petition must obtain a certificate of

appealability before he can be heard on the merits of his appeal. Montez v. McKinna,

208 F.3d 862, 867 (10th Cir. 2000). When a district court denies a habeas petition on

procedural grounds, a COA cannot issue unless the prisoner shows “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).



                                                  2
      The district court correctly dismissed Robinson’s petition on procedural

grounds. A habeas petitioner seeking relief under § 2241 must exhaust available

state remedies. Montez, 208 F.3d at 866; Wilson v. Jones, 430 F.3d 1113, 1118 (10th

Cir. 2005). The petitioner bears the burden of showing that he has exhausted

available state remedies. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992); see

also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (unpublished).

      Robinson has not met his burden of showing that he has exhausted available

state remedies. A review of the electronic docket in Robinson’s criminal case (case

no. CF-2016-00480A) suggests that Robinson has not presented most of his claims to

the Oklahoma district court, nor exhausted what appellate remedies might be

available.2 The sole exception is Robinson’s jurisdictional argument, which is

currently pending before the district court. Robinson does not allege that he has

pursued his claims by any other means which are not reflected in the criminal docket.

Nor does Robinson explain why the normal avenues for relief in state court—such as

motions before the trial court, appeal, and the state writ of habeas corpus—are

unavailable or inadequate to vindicate his rights. See, e.g., Beavers v. Saffle, 216

F.3d 918, 924 n.3 (10th Cir. 2000) (noting that exhaustion is not required when there

is “no opportunity to obtain redress in state court if the corrective process is so

clearly deficient as to render futile any effort to obtain relief”) (quoting Duckworth v.


      2
        We “exercise our discretion to take judicial notice of publicly-filed records in
our court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5
(10th Cir. 2007).
                                                3
Serrano, 454 U.S. 1, 3 (1981) (per curiam)); cf. Kugler v. Helfant, 421 U.S. 117, 124

(1975) (noting that “ordinarily a pending state prosecution provides the accused a fair

and sufficient opportunity for vindication of federal constitutional rights”).

      Robinson’s sole argument on appeal regarding exhaustion is that the

exhaustion requirement does not apply to § 2241 petitions brought by pretrial

detainees. Aplt. Br. at 9–10. Binding precedent compels rejection of that argument.

See Montez, 208 F.3d at 866 (“A habeas petitioner is generally required to exhaust

state remedies whether his action is brought under § 2241 or § 2254.”); Wilson, 430

F.3d at 1118 (“A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally

required to exhaust state remedies.”); Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 489–91 (1973) (applying exhaustion requirement to state

pretrial detainee’s § 2241 petition).

      Finally, Robinson’s assertion in his habeas petition that his attorney is

inattentive, see ROA at 11, cannot excuse his failure to exhaust, at least for now.

Although ineffective assistance of counsel can sometimes establish cause and

prejudice for procedural default, the ineffective-assistance claim must itself be

exhausted before it can provide “cause” for procedural default. Murray v. Carrier,

477 U.S. 478, 489 (1986); Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000).

Robinson has not demonstrated that he has exhausted any potential ineffective

assistance claim.

      In short, no reasonable jurist would debate that Robinson has failed to show

that he has exhausted available state court remedies or that exhaustion would be

                                               4
futile. Because “jurists of reason would” not “find it debatable whether the district

court was correct in its procedural ruling,” Slack, 529 U.S. at 484, we DENY

Robinson’s application for a certificate of appealability.3


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




      3
        Because we hold that the petition was correctly dismissed on exhaustion
grounds, we need not address the district court’s alternative holding that Younger
abstention is warranted.
                                               5
