                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       January 6, 2009
                         UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
                                      TENTH CIRCUIT


 JOE FLOYD FULLER, SR.,

           Petitioner - Appellant,
                                                            No. 08-3122
 v.                                                  (D.C. No. 08-CV-3059-SAC)
                                                              (D. Kan.)
 TED BAIRD; STATE OF KANSAS;
 STEPHEN N. SIX, Kansas Attorney
 General,*

           Respondents - Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY**


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.



       Petitioner-Appellant Joe Floyd Fuller, a pretrial detainee in the Johnson County

Jail in Olathe, Kansas, seeks a certificate of appealability (“COA”) in order to challenge



       *
        Pursuant to Fed. R. App. P. 43(c)(2), Paul Morris has been replaced by Stephen
N. Six as the Attorney General for the State of Kansas.
       **
            This Order is not binding precedent, except under the doctrines of law of the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. After examining the
briefs and the appellate record, this three-judge panel has determined unanimously that
oral argument would not be of material assistance in the determination of this matter. See
Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
the district court’s dismissal on exhaustion grounds of his petition for writ of habeas

corpus.1 Mr. Fuller claims that he is being detained without probable cause. However, he

failed to exhaust the available state court remedies before filing his petition.

Accordingly, we find that no reasonable jurist could conclude that the district court’s

dismissal was incorrect. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(a), we DENY Mr. Fuller’s application for a COA and DISMISS his appeal.

                                    I. BACKGROUND

       Mr. Fuller is currently awaiting trial in Johnson County, Kansas. He filed a pro se

petition for writ of habeas corpus,2 claiming that he is being held in violation of the First,

Fourth, Fifth, Sixth, and Fourteenth Amendments. According to his petition, Mr. Fuller

was arrested in December 2007 and has been held in custody ever since, without having

received a probable cause hearing. He also alleges that the prosecutor committed perjury



       1
             Because Mr. Fuller is proceeding pro se, we review his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S. Bureau of Prisons, 487
F.3d 808, 815 (10th Cir. 2007).
       2
                Mr. Fuller filed his petition pursuant to 28 U.S.C. § 2254. However, since
Mr. Fuller is a pretrial detainee, his petition should have been filed pursuant to
28 U.S.C. § 2241. See Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008)
(“Section . . . 2241 is a vehicle for challenging pretrial detention. . . . A § 2254 petition,
on the other hand, is the proper avenue for attacking the validity of a conviction and
sentence.”); Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007) (“[Section] 2241
is the proper avenue by which to challenge pretrial detention.”). The district court treated
the petition as if it had been properly filed under section 2241. R., Vol. I, Doc. 3, at 1-2
(Order, dated April 11, 2008). We will do the same. See Castro v. United States, 540
U.S. 375, 377 (2003) (recognizing the “longstanding practice” of treating pro se habeas
petitions as if they had been filed under the proper section); see also Aplt. Br. at 4
(requesting that we “over look[]” the fact that he misfiled his petition).

                                              -2-
by knowingly filing false charges against him. In his petition before the district court,

Mr. Fuller conceded that he had not presented his claims to the Kansas Supreme Court.

R., Vol. I, Doc. 1, at 12 (Petition for Writ of Habeas Corpus, dated Feb. 22, 2008). He

justified this omission by claiming that the federal courts are “the only court[s] with

jurisdiction to hear these issues.” Id. The district court dismissed the petition on the

grounds that Mr. Fuller failed to exhaust the available state remedies. It also denied his

request for a COA. This appeal followed, in which Mr. Fuller has filed both an

application for a COA and a brief on the merits.

                                     II. DISCUSSION

       A state prisoner may only appeal the denial of a petition for writ of habeas corpus

after receiving a COA from either this Court or the district court. 28 U.S.C. §

2253(c)(1)(A); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (holding that a

COA is a “jurisdictional prerequisite”); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.

2000) (holding that the COA requirement applies to all “challenges related to the

incidents and circumstances of any detention pursuant to state court process under §

2241”). In order to receive a COA, a prisoner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the petition is denied on

procedural grounds, the prisoner must also show 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).

       It has long been settled that “a state prisoner must normally exhaust available state

                                             -3-
judicial remedies before a federal court will entertain his petition for habeas corpus.”

Picard v. Connor, 404 U.S. 270, 275 (1971); see Ex parte Royall, 117 U.S. 241, 252-53

(1886); Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006). This generally requires,

absent extraordinary circumstance, that the claim be properly presented to the highest

state court. See Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999). Mr. Fuller

conceded that he has not sought relief from the Kansas Supreme Court.3 His assertion


       3
               In his application for a COA, Mr. Fuller now denies having made such a
concession. He asserts that “[t]he District Court never ask[ed] if [he] had exhausted any
state court remedies.” COA Application at 3. This claim is fatally flawed in two
respects. First, Mr. Fuller misconceives the charge of the district court. The court is
under no obligation to ask whether a prisoner litigant has satisfied the requirements of §
2241. Mr. Fuller “bears the burden of showing that he has exhausted available state
remedies.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). He has not met
that burden. In fact, he offered no evidence to the district court that he ever presented his
claims to the Kansas Supreme Court. Second, his factual assertion is contradicted by the
record. Mr. Fuller submitted a form petition which specifically asked if “all grounds for
relief that you have raised in this petition [have] been presented to the highest state court
having jurisdiction.” R., Vol. I, Doc. 1, at 12. Mr. Fuller checked the box indicating that
he had not. When asked to explain why he had not, he wrote that “[t]his is the only court
with jurisdiction[] to hear these issues.” Id.

               Mr. Fuller now seeks to refute his prior statement by claiming that he “did
file a Writ of Habeas Corpus in [the state criminal cases] on feb. [sic] 29, 2008.” COA
Application at 3. Although it is not clear from the application, we will give Mr. Fuller the
benefit of the doubt and assume that he is referring to a filing with the Kansas Supreme
Court. Even so, Mr. Fuller has once again failed to produce any evidence to support this
claim. His bald assertion that he filed a petition, unsupported by any court records, is
insufficient to prove that he exhausted his claims. See Brandenburg v. Beaman, 632 F.2d
120, 122 (10th Cir. 1980) (affirming the dismissal of a habeas petition, in part, because
the defendant offered “[n]o evidence of exhaustion of state remedies”); cf. Barringer v.
Wilyard, No. 07-1067, 2008 WL 5087672, at *2-3 (10th Cir. Dec. 4, 2008) (unpublished)
(noting that when a prisoner “has not offered any argument or evidence indicating that he
sought review by state courts,” his “elect[ion] to rely on his continual protestations that
there is no remedy available in the state courts” is “not enough”).

                                             -4-
that only the federal courts have jurisdiction to address his constitutional claims is wholly

without merit. Therefore, the district court was unquestionably correct in dismissing Mr.

Fuller’s petition for writ of habeas corpus. No reasonable jurist would have done

otherwise.

                                   III. CONCLUSION

       For the foregoing reasons, we DENY Mr. Fuller’s application for a COA and

DISMISS his appeal.



                                           Entered for the Court


                                           Jerome A. Holmes
                                           Circuit Judge




                                             -5-
