                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 23 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


VIVIAN EARL McDANIEL,

          Petitioner - Appellant,
                                                       No. 02-3010
v.
                                               (D.C. No. 01-CV-3020-RDR)
                                                   (District of Kansas)
WARDEN, U.S. PENITENTIARY,
LEAVENWORTH,

          Respondent - Appellee.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, 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.




      *
       This order and judgment is not binding precedent, except under the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.
      Vivian Earl McDaniel, a federal prisoner proceeding pro se, filed the

instant 28 U.S.C. § 2241 petition in district court seeking to enjoin the respondent

warden and “anyone acting in concert with him” from honoring a detainer lodged

against him by the state of Tennessee. McDaniel asserted that his conviction in

Tennessee state court, upon which the detainer was based, was obtained in

violation of the provisions of the Interstate Agreement on Detainers (“IAD”).

The district court dismissed the petition without prejudice so that McDaniel could

exhaust his state and administrative remedies. This court construes McDaniel’s

notice of appeal as a request for a certificate of appealability (“COA”). See

Montez v. McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) (“[A] federal prisoner

seeking to challenge a detainer arising out of process issued by a state court must

obtain a COA in order to appeal a district court order denying relief.”); Fed. R.

App. P. 22(b) (“If no express request for a certificate is filed, the notice of appeal

constitutes a request addressed to the judges of the court of appeals.”).

      To be entitled to a COA, McDaniel must make “a substantial showing of

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

district court dismisses a habeas petition on procedural grounds without reaching

the merits of the underlying constitutional claim “a COA 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


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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).

      In response to the district court’s order, McDaniel asserts that he need not

seek discretionary review from the Tennessee Supreme Court in order to exhaust

his state remedies. The cases relied on by McDaniel to support this proposition

were all decided before O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999),

wherein the Supreme Court held that discretionary appeal to the state’s highest

court is a necessary predicate to proper exhaustion. Furthermore, McDaniel’s

assertion that he was prevented from exhausting his state remedies because of the

violation of the anti-shuttling provisions of the IAD is belied by the record.

McDaniel filed a state habeas petition in Tennessee circuit court in 1999, but

failed to seek discretionary review in the Tennessee Supreme Court. Because the

district court’s procedural ruling is not reasonably debatable, McDaniel is not

entitled to a COA. Accordingly, this court DENIES his request for a COA and

DISMISSES this appeal for substantially those reasons set out in the district

court’s orders dated May 21, 2001 and January 14, 2002.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge



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