                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 15, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 JULIAN L. RUSSELL,

              Petitioner - Appellant,                   No. 11-3156
       v.                                                D. Kansas
 STATE OF KANSAS,                             (D.C. No. 5:11-CV-03011-SAC)

              Respondent - Appellee.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.



      Appellant, Julian L. Russell, filed an application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241 on January 11, 2011. Russell challenged his

pretrial detention at the Marion County Jail in Marion, Kansas. The district court

dismissed Russell’s § 2241 habeas application without prejudice, concluding

abstention was appropriate based on the doctrine enunciated in Younger v. Harris,

401 U.S. 37 (1971). The court also concluded that Russell had failed to exhaust

his state remedies.

      Russell now seeks a certificate of appealability (“COA”) to enable him to

appeal the district court’s denial of his § 2241 application. A COA may issue

“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). This “requires an overview of the claims

in the habeas petition and a general assessment of their merits.” Id. at 336.

Further, when the district court denies a habeas petition on procedural grounds

without reaching the applicant’s underlying constitutional claim, a COA should

issue only when the applicant 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. Slack v. McDaniel, 529 U.S. 473, 484

(2000) .

       This court has reviewed Russell’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that Russell

is not entitled to a COA. The record contains no indication that Russell pursued

his claims in Kansas state court or has exhausted his state remedies.

Accordingly, the district court’s resolution of Russell’s claims is not reasonably

subject to debate and the claims are not adequate to deserve further proceedings.



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Because Russell has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Russell’s request for a COA and dismisses this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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