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

                                    TENTH CIRCUIT                         December 15, 2015

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 JAMES R. DAWSON, JR.,

        Petitioner - Appellant,

 v.                                                          No. 15-1287
                                                            (D. Colorado)
 COLORADO,                                          (D.C. No. 1:15-CV-01512-LTB)

        Respondent - Appellee.




             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, BRISCOE, and MORITZ, Circuit Judges.


       James R. Dawson Jr., a Colorado state prisoner proceeding pro se, applied for

relief under 28 U.S.C. § 2241 in the United States District Court for the District of

Colorado. The district court dismissed his application and denied a certificate of

appealability (COA). He now seeks a COA under 28 U.S.C. § 2253(c)(1)(A). See

Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir. 2000) (state prisoner must obtain a

COA to appeal denial of habeas application under 28 U.S.C. § 2241). We deny a COA

and dismiss the appeal.
       In 1992 Mr. Dawson was convicted of second-degree murder, attempted second-

degree murder, and heat-of-passion assault in Colorado state court. At a pretrial hearing

the court had ordered that blood and urine samples be obtained from him to test for drugs

and alcohol in support of potential defenses, but that evidence was lost or destroyed by

law enforcement before it could be used at trial.

       After the conviction Colorado enacted a statute providing that “[a] court granting a

motion for hearing pursuant to [Colo. Rev. Stat. § 18-1-412, which sets forth the

procedure for a prisoner to apply for DNA testing,] shall order the appropriate law

enforcement agency to preserve existing biological evidence for DNA testing.” Colo.

Rev. Stat. § 18-1-414(2)(a) (2003) (amended 2008). The statute further requires the court

to “set a hearing to determine whether a remedy is warranted” if “a law enforcement

agency, through negligence, destroys, loses, or otherwise disposes of biological evidence

that is the subject of an order pursuant to this subsection (2) before the evidence may be

tested.” Id. § 18-1-414(2)(b).

       Mr. Dawson filed a motion under § 18-1-414(2)(b) in Colorado state court,

seeking a hearing to determine whether he was entitled to a remedy for the loss or

destruction of the blood and urine samples. The trial court denied the motion on the

ground that the statute applied only to evidence ordered preserved for DNA testing. The

Colorado Court of Appeals affirmed and the Colorado Supreme Court denied his petition

for a writ of certiorari. Mr. Dawson then filed state postconviction petitions for relief,

arguing that the court’s failure to grant him a hearing under § 18-1-414(2)(b) violated due
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process, equal protection, the federal Ex Post Facto Clause, and Colorado law. The

Colorado courts denied his petitions.

       Mr. Dawson then filed his application under 28 U.S.C. § 2241. It alleged that the

denial of his motion for a hearing under Colo. Rev. Stat. § 18-1-414 violated the Equal

Protection, Due Process, and Ex Post Facto Clauses.

       To obtain a COA a petitioner must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner “can make such a showing by

demonstrating that the issues he seeks to raise on appeal are deserving of further

proceedings, subject to a different resolution on appeal, or reasonably debatable among

jurists of reason.” Montez, 208 F.3d at 869. Review under § 2241 is available only if an

individual is “in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3).

       Mr. Dawson has failed to state a claim cognizable in a § 2241 action. He is

challenging only the constitutionality of a state postconviction procedure, not the

constitutionality of his conviction. Under our precedents such a challenge is not proper

in habeas proceedings. See Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010) (“the

district court did not err in dismissing claims that related only alleged errors in the post-

conviction proceedings”); Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998). No

reasonable jurist could debate whether Mr. Dawson’s § 2241 application ought to have

been granted.


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      We DENY Mr. Dawson’s request for a COA and DISMISS his appeal. We

GRANT his motion to proceed in forma pauperis.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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