                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        August 24, 2006
                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court

 M ICHA EL B RIA N WH ITEM AN,

       Petitioner - A ppellant,
                                                         No. 06-4054
 v.                                               (D.C. No. 2:05-CV-424-TC)
                                                           (D. Utah)
 CLINT FRIEL,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      M ichael Brian W hiteman, on parole and appearing pro se, seeks a

certificate of appealability (“COA”’) so that he may appeal from the district

court’s dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2241. The

district court determined that M r. W hiteman failed to exhaust his claims in state

court and that, alternatively, he failed to allege a violation of federal law.

      The issuance of a CO A is jurisdictional. M iller-El v. Cockrell, 537 U.S.

322, 336 (2003). W here the district court dismisses a petition on procedural

grounds, a COA requires the inmate to demonstrate that it is reasonably debatable

whether (1) the petition states a valid claim of the denial of a constitutional right,

and (2) the district court’s procedural ruling is correct. Slack v. M cDaniel, 529
U.S. 473, 484 (2000). W here the district court has rejected a habeas petitioner’s

constitutional claims on the merits, the petitioner must demonstrate that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or w rong.” Id.

      M r. W hiteman contends that the Utah Board of Pardons and Parole should

not have characterized five of his prior California misdemeanor convictions as

felonies for purposes of extending his term on a five-to-life sentence. On January

26, 2004, M r. W hitehead filed a petition for extraordinary relief in Utah state

court. That court dismissed his petition and he appealed. On appeal, he argued

that he was denied counsel at his parole hearing. The Utah Court of Appeals

affirmed the dismissal because M r. W hitehead raised a different issue on appeal.

W hiteman v. Friel, 2005 W L 27548 (Utah Ct. App. 2005). The court relied on its

rule that absent plain error or exceptional circumstances, it does not consider

issues not raised below for the first time on appeal. Id. (citing M onson v. Carver,

928 P.2d 1017, 1022 (Utah 1996)). It appears that M r. W hitehead attempted to

file an untimely petition with the Utah Supreme Court, but that court never

considered the petition. See I R. Doc. 1 (Petition at 3).

      Under 28 U.S.C. § 2254(b)(1)(A), federal courts may not grant an

application for a writ of habeas corpus on behalf of a state prisoner unless the

prisoner has “give[n] the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

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appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A

prisoner seeking federal habeas relief must first exhaust his state remedies; by

failing to seek timely review by the Utah Supreme Court, M r. W hiteman has not

exhausted. See Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.

1994).

         In any event, the claim is procedurally barred–were M r. W hiteman to return

to the Utah Supreme Court to seek certiorari in an effort to challenge the court of

appeal decision, the thirty day time period in which to do so (or seek an

extension) has long since run. Utah R. App. P. 49(a) & (e); Dulin v. Cook, 957

F.2d 758, 759 (10th Cir. 1992). Additionally, the claim is procedurally defaulted

for having not raised it before the state court of appeals. W here a claim has been

procedurally defaulted on an adequate and independent state-law ground, a

petitioner must make a showing of cause and prejudice, or a fundamental

miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262 (1989). W e agree with

the district court that Utah regularly applies its rule that absent plain error or

exceptional circumstances, an issue not raised in the district court may not be

raised on appeal. See M onson v. Carver, 928 P.2d 1017, 1022 (U tah 1996).

Because the procedural default rests on an application of independent and

adequate state law ground, the federal court could not hear the state claim, absent

a show ing of cause and prejudice or a fundamental miscarriage of justice. Harris,

489 U.S. at 262. The district court’s decision is not reasonably debatable.

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W e DENY a COA, DENY all pending motions, and DISM ISS the appeal.

                            Entered for the Court


                            Paul J. Kelly, Jr.
                            Circuit Judge




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