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

                              FOR THE TENTH CIRCUIT                           August 18, 2020
                          _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
    DELANO MEDINA,

         Petitioner - Appellant,
                                                                 No. 20-1193
    v.                                                  (D.C. No. 1:20-CV-01307-LTB)
                                                                   (D. Colo.)
    DEAN WILLIAMS,

         Respondent - Appellee.
                        _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before HARTZ, BALDOCK, and CARSON, Circuit Judges.
                  _________________________________

         Applicant Delano Medina seeks a certificate of appealability (COA) to appeal the

dismissal by the United States District Court for the District of Colorado of his

application for relief under 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 869

(10th Cir. 2000) (28 U.S.C. § 2253(c)(1)(A) requires COA for state prisoner to appeal

denial of relief under § 2241). We deny a COA and dismiss the appeal.

         Applicant is a state prisoner incarcerated at the Colorado Territorial Correctional

Facility (CTCF). On May 8, 2020, he filed an application for relief under § 2241

contending (1) that his rights under the First and Fourteenth Amendments are being



*
  This order is not binding precedent except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violated because he is being denied access to the prison law library as a result of a

lockdown related to the COVID-19 pandemic, and (2) that his confinement during the

pandemic violates his rights under the Eighth Amendment.

       The district court construed the application as challenging only conditions of

Applicant’s confinement, rather than its fact or duration. It therefore ruled that a § 2241

application was not the proper vehicle for Applicant’s claims, dismissed the application

without prejudice to the refiling of a civil-rights action under 42 U.S.C. § 1983, and

denied a COA. Applicant now seeks a COA from this court.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that 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) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. If the application was denied on procedural

grounds, as was the case here, the applicant faces a double hurdle. Not only must the

applicant make a substantial showing of the denial of a constitutional right, but he must

also show “that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id.

       In this court Applicant contends that his claims are properly raised through habeas

proceedings. At the same time, though, he seems to concede that “the issue of denying a

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law library is properly brought under . . . 1983.” Aplt. Br. at 2. As for his Eighth

Amendment claim, Applicant urges that habeas relief should be available to protect

inmates from the health risks posed by COVID-19.

       Applicant’s law-library claim clearly relates to the conditions of his confinement,

not the fact or duration of his sentence, and the district court thus correctly concluded that

this claim cannot be brought in federal habeas proceedings. See Standifer v. Ledezma,

653 F.3d 1276, 1280 (10th Cir. 2011) (“It is well-settled law that prisoners who wish to

challenge only the conditions of their confinement, as opposed to its fact or duration,

must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971)—not through federal habeas

proceedings.”); Gonzales v. Warden, 55 F. App’x 879, 880 (10th Cir. 2003) (“To the

extent Mr. Gonzales attempts to raise his claim regarding denial of access to a law

library, we agree with the district court that he must file a § 1983 action. . . .”).

       Applicant’s Eighth Amendment claim is more complicated. For the most part it

appears to object only to conditions of confinement, not the legality of custody, and

therefore was properly dismissed. See Standifer, 653 F.3d at 1280. But the claim could

be construed as also contending that in light of the pandemic he should be released from

custody because there are no conditions of confinement that could adequately prevent an

Eighth Amendment violation. At least one circuit court has held that such a claim can be

raised through federal habeas proceedings. See Wilson v. Williams, 961 F.3d 829, 837–

38 (6th Cir. 2020).



                                               3
       But even assuming that Applicant is making such a claim, the dismissal was still

clearly correct. An applicant for relief under § 2241 has the burden of showing that he

has exhausted available state remedies. See Magar v. Parker, 490 F.3d 816, 818 (10th

Cir. 2007) (requiring exhaustion for § 2241 claim); Miranda v. Cooper, 967 F.2d 392,

398 (10th Cir. 1992) (prisoner has burden of showing exhaustion). To have exhausted

state remedies, the applicant “must have first fairly presented the substance of his federal

habeas claim to state courts,” Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002),

which includes presentation of the federal claim to the state’s highest available court, see

Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999).

       Applicant did not establish exhaustion during the district-court proceedings. He

said that he had filed a state habeas petition that was denied by the Colorado district court

(although we do not know what specific relief he sought), and that he had appealed that

decision. But he said that the notice of appeal had been filed only on May 1, 2020,

merely a week before he filed his § 2241 application. He has made no claim that state

appellate review has been completed. His failure to show that he exhausted available

state remedies bars him from seeking federal habeas relief.

       No reasonable jurist would dispute the propriety of the dismissal of Applicant’s

§ 2241 application.




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      We DENY a COA and DISMISS the appeal. We also DENY Applicant’s motion

to proceed in forma pauperis.


                                     Entered for the Court



                                     Harris L Hartz
                                     Circuit Judge




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