                                                                                     FILED
                                                                         United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                     TENTH CIRCUIT                            November 1, 2018

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 CLEDITH BOHANON,

                 Plaintiff - Appellee,

 v.                                                          No. 18-3180
                                                    (D.C. No. 5:18-CV-03200-SAC)
 DAN SCHNURR,                                                  (D. Kan.)

                 Defendant - Appellant.



                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, MCKAY, and O’BRIEN, Circuit Judges.


       In 1980, Cledith Bohanon was sentenced by the district court of Sedgwick County,

Kansas, to 25 years to life in the Kansas Department of Corrections (KDOC) for

aggravated assault on a law enforcement officer, aggravated assault, and aggravated

battery. The Kansas Court of Appeals (KCA) affirmed his convictions and sentence on

direct appeal.

       Over thirty years later, in May 2017, Bohanon filed a pro se motion in the

Sedgwick County district court seeking release from prison because, he claimed, he had



       *
         This order is not binding precedent, except under the doctrines of law of the case,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.
completed his sentence. At that time, he was incarcerated in Reno County, Kansas. The

state court concluded it was without jurisdiction to address the motion. Because he was

challenging the KDOC’s calculation of his release date rather than the legality of his

original sentence, the district court of incarceration (Reno County), not the district court

of sentencing (Sedgwick County), had jurisdiction to hear his claim. The KCA affirmed.

       Bohanon then filed a pro se 28 U.S.C. § 2254 habeas corpus petition, which the

district judge construed as a 28 U.S.C. § 2241 petition because it challenged the

execution of his sentence, rather than its validity. See McIntosh v. U.S. Parole Comm’n,

115 F.3d 809, 811 (10th Cir. 1997) (“Petitions under § 2241 are used to attack the

execution of a sentence, in contrast to § 2254 habeas . . . proceedings, which are used to

collaterally attack the validity of a conviction and sentence.” (citation omitted).) He sua

sponte dismissed the petition without prejudice because Bohanon had failed to exhaust

his state court remedies. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“A

habeas petitioner is generally required to exhaust state remedies whether his action is

brought under § 2241 or § 2254.”); see also United States v. Mitchell, 518 F.3d 740, 746

n.8 (10th Cir. 2008) (“Sua sponte consideration of exhaustion of state remedies . . . is

explicitly permitted by Supreme Court precedent.”). To properly exhaust, the judge said,

Bohanon first must file his claims in the state district court where he is incarcerated

(which he did not do) and, if not successful, pursue relief through the state appellate

courts, including seeking review with the Kansas Supreme Court.

       The judge denied a certificate of appealability (COA) so Bohanon seeks one here.

See Montez, 208 F.3d at 867 (10th Cir. 2000) (a state prisoner must obtain a COA to

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appeal from the dismissal of § 2241 petition). We will issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). When, as here, “the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s 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 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). Bohanon wholly fails

to satisfy his burden.

       He simply says the judge erred, cites the COA standard, and asks us to remand to

the district court for entry of the habeas corpus writ and immediate release. Absent is any

argument as to how the judge erred. Notably, he does not dispute that the state courts

have not had the first opportunity to address his claims because he filed them in the

wrong state district court. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to exhaust state

court remedies, the petitioner “must fairly present his claim in each appropriate state

court (including a state supreme court with powers of discretionary review)” (quotation

marks omitted)), O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[T]he exhaustion

doctrine is designed to give the state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the federal courts.”). Nor does

he dispute he has state court remedies available to exhaust—he can still file his claims in

the correct state district court and, if unsuccessful, appeal to the KCA and Kansas

Supreme Court.

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      Because the judge’s decision is not reasonably debatable, we DENY a COA and

DISMISS this matter.



                                      Entered by the Court:



                                      Terrence L. O’Brien
                                      United States Circuit Judge




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