                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                       UNITED STATES COURT OF APPEALS March 16, 2009

                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                             __________________________                 Clerk of Court


 RAUL C. ZAPATA,

           Petitioner - Appellant,

 v.                                                         No. 08-2157
                                                             (D. N.M.)
 MICHAEL HEREDIA, Warden;                       (D.Ct. No. 1:07-CV-01177-WJ-LFG)
 GARY K. KING, Attorney General of
 the State of New Mexico,

           Respondent - Appellee.
                          ____________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



       Raul Zapata, proceeding pro se 1 and in forma pauperis, requests a

Certificate of Appealability (COA) to appeal from the district court’s dismissal of

his habeas petition filed pursuant to 28 U.S.C. § 2254. 2 For substantially the

       1
        We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan., 318 F.3d
1183, 1187 (10th Cir. 2003).
       2
         “If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability or state why a certificate should
not issue.” Fed. R. App. P. 22(b)(1). The district court did not act on Zapata’s
constructive request for a COA. A COA is deemed denied if the district court does not
address the issuance of a COA within thirty days. 10th Cir. R. 22.1(C). Because Zapata
did not expressly request a COA, we deem his notice of appeal a request for a COA. See
Fed. R. App. P. 22(b)(2).
same reasons given by the district court in dismissing his § 2254 petition, we

deny Zapata’s request for a COA and dismiss this inchoate appeal.

                                    I. BACKGROUND

       On August 15, 2005, Albuquerque police officers went to Zapata’s ex-

girlfriend’s apartment after she reported to the police that Zapata had pointed a

handgun at her and threatened to kill her. While police were interviewing the

complainant, Zapata returned. Officers stationed outside the apartment complex

approached Zapata’s vehicle and commanded him to display his hands. Instead,

he shot himself in his midsection; an action he claims was a failed suicide

attempt. He was transported to a local hospital for treatment and later arrested.

       The state jury found Zapata guilty of aggravated assault upon a household

member with a deadly weapon. He was also found to be a habitual offender. He

was sentenced to 42 months imprisonment and appealed from that conviction to

the New Mexico Court of Appeals. 3 Prior to a disposition of that appeal, Zapata

filed this federal habeas petition. A magistrate judge filed a report recommending

(R&R) his claims be dismissed without prejudice because his state court

appellate proceedings were still pending. Over Zapata’s objections, the district

court adopted the R&R and dismissed the petition, without prejudice, for failure

       3
         Before the district court, an issue was raised concerning Zapata’s direct appeal in
state court. It appears Zapata had mailed notices of appeal directly to the chambers of the
state court judge due to issues with his appointed counsel. These notices were retained in
the judge’s chambers until February 8, 2008, when they were filed, commencing the
appeal process in the New Mexico Court of Appeals.

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to exhaust state remedies. Zapata request to appeal from the dismissal.

                                  II. DISCUSSION

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 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). To make such a showing, an

applicant must demonstrate “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

“When 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.” Id. “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

      We agree with the district court; Zapata’s claims are procedurally barred.

A habeas petitioner is required to exhaust his state court remedies prior to

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obtaining federal habeas review. See 28 U.S.C. § 2254(b)(1)(A). Zapata has

failed to do so here. When a petitioner fails to give the state courts the

opportunity to fully determine the merits of his claims, a federal court has two

courses of possible action. “First, it may dismiss the petition and allow the

petitioner to return to state court to exhaust his claims. Second, it may deny the

petition on its merits, notwithstanding the petitioner’s failure to exhaust his state

court remedies.” Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002)

(citations omitted). The dismissal without prejudice was the less punitive of the

two alternatives. Dismissal without prejudice does not close the door for

potential future review in federal courts and allows the state courts to first address

Zapata’s issues. The district court cannot be faulted for its procedural ruling.

      We DENY a COA and DISMISS this inchoate appeal. Because Zapata’s

appeal is premature, we also DENY his motion for appointment of counsel and

“Motion for New Evidence.”

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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