                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 16, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 ROGER SCOTT BLACKBURN,

              Petitioner–Appellant,

 v.
                                                        No. 09-1077
 COLORADO BOARD OF PAROLE,
                                              (D.C. No. 1:08-CV-02688-ZLW)
 (Exec. Dir.) Chairman; Board
                                                         (D. Colo.)
 Member, WAGGNER; Board Member,
 C DEBACA; and COLORADO
 DEPARTMENT OF CORRECTIONS
 EXECUTIVE DIRECTOR,

              Respondents–Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Roger Scott Blackburn filed a pro se complaint in the district court seeking

release from state prison. Construing his pleadings liberally, see Haines v.

Kerner, 404 U.S. 519, 520-21 (1972), we recharacterize his claim as brought

under 28 U.S.C. § 2241 rather than as a 42 U.S.C. § 1983 suit. Because he is in

state custody, Blackburn must obtain a certificate of appealability (“COA”) before

we may reach the merits of his appeal. For substantially the same reasons

provided by the district court, we deny a COA and dismiss the appeal.
                                          I

      While in state custody, Blackburn filed a pro se complaint, ostensibly under

42 U.S.C. § 1983. He sought release from prison, arguing that the Colorado

Board of Parole unlawfully denied him parole. Blackburn also filed a motion and

supporting documentation for leave to proceed in forma pauperis (“IFP”) before

the district court, which the district court granted. In granting IFP status, the

district court explained that Blackburn would be required to pay a $350 filing fee

in partial payments. Blackburn was ordered to pay an initial fee of $5 within 30

days or demonstrate inability to pay that fee. The order cautioned that failure to

comply would lead to dismissal of his complaint without prejudice. After thirty

days had passed and Blackburn neither paid the $5 nor showed cause to excuse

the fee, the district court dismissed his case without prejudice. Blackburn then

filed what we construe as a notice of appeal in the district court.

                                          II

      On appeal, Blackburn contends that he submitted paperwork explaining that

he could not pay the $5 fee. He also advances several arguments that were not

raised before the district court. Because Blackburn challenges the duration of his

confinement and requests discharge from state custody rather than monetary

damages, his claim cannot be brought under 42 U.S.C. § 1983 but must be

brought as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). We

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accordingly recharacterize Blackburn’s claim as such. In order to appeal the

district court’s adverse determination of his § 2241 petition, Blackburn must

obtain a COA because he is in state, rather than federal, custody. Montez v.

McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000). We thus construe his appeal, at

this point, as an application for a COA.

       To obtain a COA, Blackburn must make “a substantial showing of the

denial of a constitutional right.” § 2253(c)(2). When the district court denies a

habeas petition on procedural grounds without reaching the underlying

constitutional claims, as it did here, a petitioner is not entitled to a COA unless he

can show both 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). An appellate court has

discretion to resolve either the procedural or the substantive issue first. Id. at

485.

       We conclude that reasonable jurists could not debate that the district court

permissibly dismissed this case for Blackburn’s failure to pay the $5 filing fee or

to show cause that he could not. Despite Blackburn’s contention that he

submitted evidence demonstrating his inability to pay the $5 fee in response to the

district court’s order, we see no such evidence in the record. Although the district

court should have recharacterized this case as a § 2241 petition rather than a

                                           -3-
§ 1983 suit, that it did not do so was harmless. Blackburn, proceeding IFP, was

properly ordered to pay $5 or demonstrate his inability to do so regardless of

recharacterization. See 28 U.S.C. § 1915(a). Because the district court’s order

was permissible, so too was dismissal—following reasonable notice—for failure

to follow it.

       Accordingly, we DENY Blackburn’s application for a COA and DISMISS

the appeal. We DISMISS all pending motions for lack of jurisdiction because

Blackburn has not obtained a COA. Given that Blackburn proceeded IFP before

the district court and his case properly sounds in habeas, he is entitled to proceed

IFP on appeal. Fed. R. App. P. 24(a)(3).



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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