                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                        April 22, 2009
                UNITED STATES COURT OF APPEALS
                                             Elisabeth A. Shumaker
                                                        Clerk of Court
                         FOR THE TENTH CIRCUIT


JOE FLOYD FULLER, SR.,

           Petitioner-Appellant,

v.                                             No. 08-3296
                                      (D.C. No. 5:08-CV-03204-SAC)
STATE OF KANSAS; JOHNSON                         (D. Kan.)
COUNTY DISTRICT ATTORNEY’S
OFFICE; JOHNSON COUNTY
DISTRICT COURT,

           Respondents-Appellees.


JOE FLOYD FULLER, SR.;
EUGENE KELTNER,

           Petitioners-Appellants,

     and

JOHN WILSON,                                    No. 08-3305
                                      (D.C. No. 5:08-CV-03172-RDR)
           Petitioner,                           (D. Kan.)

v.

FRANK DENNING,

           Respondent-Appellee.


JOE FLOYD FULLER, SR.,

           Petitioner-Appellant,
    v.
                                                         No. 08-3322
    STATE OF KANSAS; JOHN                       (D.C. No. 5:08-CV-03155-SAC)
    ANDERSON, III, Judge; S. TATUM,                        (D. Kan.)
    Judge; P. RUDDICK, Judge,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, MURPHY, and HARTZ, Circuit Judges. **



         This case involves three pro se appeals that we consolidate for procedural

purposes only. In each appeal, Joe Floyd Fuller, Sr., a pretrial detainee in El

Dorado Correctional Facility in Kansas, seeks a certificate of appealability (COA)

to challenge the district court’s dismissal of a 28 U.S.C. § 2241 habeas corpus

petition. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867, 869

(10th Cir. 2000). Because “jurists of reason” would not “find it debatable

whether the district court was correct in its procedural ruling[s],” in any of the



*
       This order is not binding precedent except under the doctrines of law of the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 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.

                                          -2-
three appeals, we deny Mr. Fuller’s requests for a COA and dismiss all three

appeals. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                 BACKGROUND

      In the § 2241 petition underlying appeal number 08-3296, Mr. Fuller claims

his pretrial detention on pending Kansas state criminal charges violates the

Speedy Trial Act and the Sixth Amendment right to speedy trial. Specifically, in

his August 2008 petition, he asserts that he has been awaiting trial since his

December 24, 2007, arrest. The district court dismissed the petition without

prejudice based on the doctrine enunciated in Younger v. Harris, 401 U.S. 37, 54

(1971). The court also concluded that Mr. Fuller had failed to exhaust his state

remedies. He now seeks a COA from this court, contending that he is still

awaiting trial, that the federal district court is “protecting Johnson County

Kansas,” and that he has tried to exhaust his state remedies. Appeal No. 08-3296,

Application for COA at 3.

      In the § 2241 petition underlying appeal number 08-3305, Mr. Fuller, on

behalf of himself and two other pretrial detainees (“petitioners”), challenges the

conditions of petitioners’ pretrial confinement, alleging that they have not

violated any rules but are housed in administrative segregation and/or solitary

confinement, and that they are denied access to television, media, games, and

communication. He submits that these conditions constitute cruel and unusual

punishment under the Eighth Amendment and violate petitioners’ Fourteenth

                                         -3-
Amendment due process rights. The district court dismissed the petition without

prejudice, concluding that petitioners’ allegations should be raised pursuant to

42 U.S.C. § 1983 by each individual in separate actions. Mr. Fuller now seeks a

COA from this court (apparently on behalf of himself and the two other pretrial

detainees identified in his § 2241 petition). In his application for a COA he

maintains that petitioners’ Eighth and Fourteenth Amendment rights are being

violated, takes issue with the district court’s determination that petitioners’ claims

sound in civil rights not in habeas, and asserts that the federal district court is

“protecting Johnson county Kansas’s Judicial System as well as the Sheriff’s

Department.” Appeal No. 08-3305, Application for COA at 3.

      In the § 2241 petition underlying appeal number 08-3322, Mr. Fuller claims

his pretrial detention on pending Kansas state criminal charges violates the Fourth

and Fourteenth Amendments. Specifically, in his June 2008 petition, he asserts

that he has been in state custody since December 24, 2007, but has not been

afforded a “probable cause or preliminary hearing.” Appeal No. 08-3322, R.,

Doc. 1 at 3. His pretrial detention, he further explains, “has imperiled [his]

Social Security Benefits, Physical Rehabilitation, other source[s] of income, and

impaired family relationships.” Id. The district court dismissed the petition

without prejudice, concluding that Mr. Fuller’s pursuit of federal habeas relief

was premature because he had neither exhausted his state remedies nor

demonstrated that state remedies were unavailable or ineffective to address his

                                           -4-
claims. Mr. Fuller then filed a Fed. R. Civ. P. 60(b) motion for reconsideration,

contending that he tried to exhaust available state court remedies, which the

district court denied. Mr. Fuller now seeks a COA from this court, asserting that

his First Amendment rights have been violated, that his Fourth Amendment rights

are being violated, that “[t]he [federal] district [court] should have intervened

once [the Rule] (60)(b) was filed,” and that “the District Court of Kansas has

some kind [of] tie with Johnson County Kansas” and “protect[s] them [sic].”

Appeal No. 08-3322, Application for COA at 3. 1

                                   DISCUSSION

      A COA may issue “only if the applicant has made a substantial showing of

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

district court resolves a habeas petition on procedural grounds, “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


1
        Mr. Fuller’s allegation that his First Amendment rights have been violated
is raised for the first time on appeal. Although we have “discretion to consider
arguments raised for the first time on appeal, we decline to do so in this case.”
Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d
1045, 1051 (10th Cir. 2008) (citation omitted). Likewise, we will not consider
the district court’s denial of Mr. Fuller’s Rule 60(b) motion because, even though
he mentions it in his application for a COA and appellate brief, he “does not
address the issue, so we consider it waived.” Ambus v. Granite Bd. of Educ.,
975 F.2d 1555, 1558 n.1 (10th Cir. 1992), modified on other grounds on reh’g,
995 F.2d 992 (10th Cir. 1993); see also Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are
. . . inadequately presented[] in an appellant’s opening brief.”).

                                          -5-
right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack, 529 U.S. at 484. We review de novo

a district court’s decision to abstain pursuant to Younger. Roe No. 2 v. Ogden,

253 F.3d 1225, 1232 (10th Cir. 2001). Based on our independent review of

Mr. Fuller’s COA applications and appellate briefs, the district court’s orders, and

the records on appeal, and affording solicitous construction to Mr. Fuller’s pro se

filings, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we

conclude that he has not demonstrated “that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling[s].”

Slack, 529 U.S. at 484.

      Specifically, with respect to the § 2241 petition underlying appeal number

08-3296, reasonable jurists could not debate the federal district court’s

determination that Younger mandates abstention. See Younger, 401 U.S. at 45, 46

(explaining that federal courts should ordinarily refrain from interfering in

ongoing state criminal proceedings, absent “irreparable injury” that “is both great

and immediate”).

      Likewise, with respect to the § 2241 petition underlying appeal number

08-3305, reasonable jurists could not debate the federal district court’s

determination that petitioners’ allegations should be raised pursuant to 42 U.S.C.

§ 1983 by each individual in separate actions. See Rael v. Williams, 223 F.3d

1153, 1154 (10th Cir. 2000) (explaining that the Supreme Court “has

                                          -6-
distinguished between habeas actions and those challenging conditions of

confinement under 42 U.S.C. § 1983,” leading us to recognize that “federal claims

challenging . . . conditions of . . . confinement generally do not arise under

§ 2241”); Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.

2000) (observing that “[a] litigant may bring his own claims to federal court

without counsel, but not the claims of others”).

      Finally, with respect to the § 2241 petition underlying appeal number

08-3322, reasonable jurists could not debate the federal district court’s

determination that Mr. Fuller’s petition should be dismissed for failure to satisfy

the exhaustion requirement. See Picard v. Connor, 404 U.S. 270, 275 (1971)

(“[A] state prisoner must normally exhaust available state judicial remedies

before a federal court will entertain his petition for habeas corpus.”); Capps v.

Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) (“No statutory exhaustion

requirement applies to § 2241, but case law holds . . . [that] federal courts should

abstain from the exercise of . . . jurisdiction if the issues raised in the petition

may be resolved either by trial on the merits in the state court or by other state

procedures available to the petitioner.” (quotation omitted)).

                                    CONCLUSION

      Mr. Fuller’s requests for certificates of appealability are DENIED and

appeal numbers 08-3296, 08-3305, and 08-3322, are DISMISSED. His motion for




                                           -7-
leave to proceed on appeal without prepayment of costs or fees, in appeal number

08-3322, is GRANTED.



                                                  Entered for the Court



                                                  Deanell Reece Tacha
                                                  Circuit Judge




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