                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        September 22, 2005
                                TENTH CIRCUIT
                                                                            Clerk of Court


IVAN STAMPS,

       Plaintiff-Appellant,
                                                        No. 05-1000
v.                                                  (District of Colorado)
                                                    (D.C. No. 04-Z-2072)
STATE OF COLORADO,

       Defendant-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      On October 7, 2004, Ivan Stamps filed a complaint in federal district court

seeking to challenge the constitutionality of Colorado’s mandatory parole statute

pursuant to 28 U.S.C. § 1983. See Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(E).

The district court construed Stamps’ complaint as an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 and dismissed it without prejudice for

failure to exhaust state remedies. Stamps challenges the characterization of his

complaint and seeks to appeal its dismissal by the district court.

      Because we conclude that the district court properly construed Stamps’

complaint as a § 2254 habeas corpus application, Stamps cannot appeal the
district court’s denial of that application until he obtains a certificate of

appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal

may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). To be entitled to a COA, Stamps must 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. 474, 484-85 (2000) (holding

that when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). Our review of the

record demonstrates that the district court’s dismissal of Stamps’ § 2254

application is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, this court denies Stamps a COA and

dismisses this appeal. Stamps’ motion to proceed in forma pauperis on appeal is

granted. All other outstanding motions are denied.

                                  Entered for the Court
                                  DOUGLAS E. CRESSLER, Acting Clerk of Court


                                  By
                                         Deputy Clerk




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