                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 9 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 SONNY LAUREN HARMON,

          Petitioner-Appellant,

 v.                                                        No. 00-6185
                                                          (W.D. Okla.)
 GLYNN BOOHER, Warden,                              (D.Ct. No. 00-CV-527-C)

          Resondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Sonny Lauren Harmon, a state prisoner appearing pro se, appeals


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
the district court’s decision denying without prejudice habeas relief as requested

in Mr. Harmon’s petition filed “Pursuant to 28 U.S.C. Sections 2241 & or 2254.”

The district court construed Mr. Harmon’s petition as a petition filed under 28

U.S.C. § 2241 because it challenged the execution of his sentence, rather than the

validity of his sentence as required for filings under § 2254. We exercise

jurisdiction under 28 U.S.C. § 2253(a), deny Mr. Harmon’s request for a

certificate of appealability, 1 and dismiss his appeal.



       Mr. Harmon is serving a prison term under an Oklahoma state conviction.

In his federal petition, Mr. Harmon alleges the Oklahoma Department of

Corrections improperly revoked good time credits he earned during his

incarceration by retroactively applying a new department policy allowing such

revocation. 2 He also alleged the department revoked his credits without prior

notice or a hearing. In addition, Mr. Harmon asserted he exhausted his state

       1
         While a certificate of appealability is not necessary for a federal prisoner to
proceed under § 2241, a state prisoner, like Mr. Harmon, must obtain a certificate of
appealability to appeal the denial of a habeas petition whether such petition was filed
pursuant to §§ 2254 or 2241. See Montez v.McKinna, 208 F.3d 862, 866-67 (10th Cir.
2000). The district court denied Mr. Harmon’s request for a certificate of appealability,
which Mr. Harmon renews on appeal.

       2
          Mr. Harmon claims the impetus for the department’s revocation of his earned
credits stemmed from its improper, retroactive consideration of his 1992 escape from
incarceration.


                                            -2-
remedies on these claims by filing a state habeas application in the District Court

of Caddo County, Oklahoma, and seeking review by the Oklahoma Court of

Criminal Appeals of the district court’s decision denying his application.



      The federal district court referred the petition to a magistrate judge who

recommended denying Mr. Harmon’s § 2241 petition for failure to exhaust his

state remedies. Specifically, the magistrate judge ascertained Mr. Harmon failed

to exhaust his state remedies because his state habeas application was dismissed

without prejudice on improper venue grounds due to Mr. Harmon filing his

application in the wrong state district court. The magistrate judge further

ascertained that both the Oklahoma district court and appellate court explicitly

instructed Mr. Harmon the proper venue for his application was in the District

Court of Oklahoma County, Oklahoma. Given his apparent failure to refile his

application in the proper venue, the magistrate judge noted it appeared Mr.

Harmon could still seek review of his claims in the state courts by filing his state

habeas application in the proper state district court. Following a review of the

record and Mr. Harmon’s objections to the magistrate judge’s recommendation,

the district court adopted the magistrate judge’s Report and Recommendation and

denied Mr. Harmon’s petition.




                                          -3-
      On appeal, Mr. Harmon asserts the federal district court decided a question

of state exhaustion on his petition inconsistent with federal law because

“[r]epetitive presentment of the same claim to a different state district court is

error.” In support, Mr. Harmon provides arguments concerning 1) his perception

of federal law which he contends requires the federal district court to reach the

merits of his claims; and 2) the grounds supporting his earned credit claims

against the Oklahoma Department of Corrections.



      We review de novo the district court’s legal conclusions in denying Mr.

Harmon’s § 2241 habeas petition. See Patterson v. Knowles, 162 F.3d 574, 575

(10th Cir. 1998). Like habeas petitions filed under 28 U.S.C. 2254, we require

exhaustion of a petitioner’s state remedies for petitions filed under § 2241. See

Montez, 208 F.3d at 866. “The exhaustion requirement is satisfied if the issues

have been ‘properly presented to the highest state court, either by direct review of

the conviction or in a postconviction attack.’” Brown v. Shanks, 185 F.3d 1122,

1124 (10th Cir. 1999) (quoting Dever v. Kansas State Penitentiary, 36 F.3d 1531,

1534 (10th Cir. 1994). “‘An exception is made only if there is no opportunity to

obtain redress in state court or if the corrective process is so clearly deficient as

to render futile any effort to obtain relief.’” Beavers v. Saffle, 216 F.3d 918, 924

n.3 (10th Cir. 2000) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per


                                           -4-
curiam), and citing 28 U.S.C. § 2254(b)(1)(B)). In order to appeal the denial of

his § 2241 petition, Mr. Harmon must obtain a certificate of appealability. See

Montez, 208 F.3d at 867. To obtain a certificate of appealability under § 2253(c),

a habeas prisoner like Mr. Harmon must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the

district court denies a habeas petition on procedural grounds without reaching the

merits of the petitioner’s claim, “a [certificate of appealability] should issue when

the prisoner shows, at least, 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, 120 S. Ct. 1595, 1604 (2000).



      After a review of the record, it is clear “jurists of reason” would not find it

debatable whether the district court correctly ruled on the procedural issue

concerning Mr. Harmon’s failure to exhaust his state court remedies. The record

plainly shows the state court dismissed Mr. Harmon’s state habeas application

without prejudice and without considering the merits of his claims, based on his

failure to file his application in the proper state court. In addition, the state

district court and appellate court clearly indicated Mr. Harmon could file his state

habeas application in the appropriate state court. Under these circumstances, we


                                           -5-
agree with the district court that a state remedy is still available to Mr. Harmon.

Thus, we conclude Mr. Harmon fails to make a substantial showing of the denial

of a constitutional right because he fails to show he exhausted his state remedies

or that exhaustion in the state courts would be futile. Accordingly, for

substantially the same reasons contained in the magistrate judge’s April 24, 2000

Report and Recommendation, and the district court’s May 22, 2000 Order, we

deny Mr. Harmon’s request for a certificate of appealability and DISMISS his

appeal. We further deny Mr. Harmon’s request to proceed in forma pauperis.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                          -6-
