                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 6 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    VERNON NORMAN EARLE,

                Petitioner - Appellant,

    v.                                                   No. 01-2369
                                                 D.C. No. CIV-01-158 JP/LFG
    IMMIGRATION AND                                    (D. New Mexico)
    NATURALIZATION SERVICE; DON
    STEWART, Warden, Torrance County
    Correctional Facility,

                Respondents - Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




         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.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Vernon Norman Earle appeals from the dismissal of his petition for habeas

corpus brought pursuant to 28 U.S.C. § 2241. Although he is currently

incarcerated in a federal facility pursuant to a deportation order, Mr. Earle is

serving state sentences for murder and other crimes and is considered to be a state

prisoner for the purpose of applying 28 U.S.C. § 2253(c)(1)A) (providing that a

state prisoner must be granted a certificate of appealability (COA) to appeal “the

final order in a habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court”).   See Montez v. McKinna , 208 F.3d

862, 867 (10th Cir. 2000) (applying § 2253(c)(1)(A) to state prisoners applying

for relief under § 2241).

       To be entitled to a COA, Mr. Earle must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that “reasonable jurists would find the district court’s

assessment of [his] constitutional claims debatable or wrong,” or that the

questions presented deserve further proceedings.     Slack v. McDaniel , 529 U.S.

473, 483-84 (2000).

       Mr. Earle based his habeas claim on a lack of due process, alleging that his

deportation proceedings were unlawfully initiated before the appeal of his

criminal convictions was final, and that the Immigration and Naturalization

Service failed to follow regulations. The relief he sought was issuance of an


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order requiring his immediate deportation so that he would not be required to

complete his state-ordered prison terms. The district court held that it had no

“jurisdiction to order that [Mr.] Earle’s [state] sentence be cut short so that he

may be deported immediately.” R. Doc. 20 at 2. Mr. Earle gives no cogent

reason supported by relevant legal authority why this ruling is erroneous. For

substantially the same reasons recommended by the magistrate judge and adopted

by the district court in its November 16, 2001 order, we conclude that Mr. Earle

cannot make the requisite showing to establish his right to appeal from the court’s

denial of his petition, and we therefore deny his request for a COA.

      Mr. Earle filed a “Motion to Please Take Judicial Notice” in which he

challenges what he characterizes as the district court’s “change [of] title” of his

petition brought pursuant to § 2241 into a petition brought pursuant to 28 U.S.C.

§ 2255. We note that the district court simply made a typographical error in its

order issued January 4, 2002, when it stated that Mr. Earle’s habeas petition was

brought under § 2255. In the same order, the district court refused to alter or

amend its original judgment, which clearly denominated the petition as one

brought pursuant to § 2241. The motion to take judicial notice is DENIED.




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We DENY the request for a COA and DISMISS the appeal.



                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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