                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAY 30 1997

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 MONDRAY JEFFERSON,

          Petitioner-Appellant,

 v.                                                    No. 96-1278
                                                   (D.C. No. 95-D-3256)
 ROBERT FURLONG, ATTORNEY                               (Colorado)
 GENERAL OF THE STATE OF
 COLORADO,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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); 10th Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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.
      Petitioner Mondray Jefferson filed an application for a writ of habeas

corpus under 28 U.S.C. § 2254 alleging that he had been denied his constitutional

rights to due process, equal protection, and effective assistance of counsel by the

delay in his right to appeal his underlying state conviction. Upon recommenda-

tion of the magistrate judge, the district court dismissed the action without

prejudice for failure of Mr. Jefferson to exhaust state remedies. The court then

denied Mr. Jefferson’s request for a certificate of appealability. The district court

also denied leave to file an appeal without payment of fees under 28 U.S.C. §

1915, as amended by the Prison Litigation Reform Act, because Mr. Jefferson

failed to submit a certified trust account statement.

      We grant Mr. Jefferson’s request to proceed on appeal without payment of

fees. As we held recently in United States v. Simmonds, No. 96-3287, 111 F.3d

737 (10th Cir. 1997), a section 2254 habeas corpus action is not a civil action as

contemplated by the Prison Litigation Reform Act, and Mr. Jefferson is not

required to submit a certified statement of his trust account.

      After reviewing the record in light of Mr. Jefferson’s contentions, however,

we deny his motion for a certificate of appealability. For the reasons set forth in

the district court’s Order Adopting Magistrate Judge’s Recommendation, we agree

with the district court that Mr. Jefferson has failed to exhaust available state court

remedies, a prerequisite to bringing this action. Since Mr. Jefferson may obtain


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relief in state court, he has not yet made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253.

      Accordingly, we DENY Mr. Jefferson’s application for a certificate of

appealability and we DISMISS the appeal.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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