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

                                      TENTH CIRCUIT                        January 31, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

v.                                                            No. 11-1367
                                                                (D. Colo.)
DARIAN HUNTER,                                    (D.C. Nos. 1:11-CV-01938-WYD and
                                                       1:96-CR-00419-WYD-10)
              Defendant – Appellant.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Darian Hunter was sentenced to 24 months imprisonment following the revocation

of his supervised release. He filed a direct appeal which is currently pending before this

Court.1 See Appeal No. 10-1522. Proceeding pro se,2 he also filed a 28 U.S.C. § 2255

motion to vacate, set aside or correct sentence alleging ineffective assistance of counsel

in connection with the sentence he received following the revocation of his supervised

release. The district court denied the motion without prejudice as premature because


       1
        Hunter was originally represented by counsel on appeal. At his request he is now
proceeding pro se, but with standby counsel.
       2
       We liberally construe Hunter’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
“[a]bsent extraordinary circumstances, the orderly administration of criminal justice

precludes a district court from considering a § 2255 motion while review of the direct

appeal is still pending.” See United States v. Cook, 997 F.2d 1312, 1319 (10th Cir.

1993). It determined Hunter had failed to show extraordinary circumstances justifying

consideration of his § 2255 motion while his direct appeal is pending. The court also

denied Hunter’s request for a certificate of appealability (COA) because he had not made

“a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2).

Hunter renewed his COA request with this Court. We deny it.

        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). Because the district court’s ruling rests on procedural

grounds, he must show both 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). Hunter has failed to satisfy this burden.

       Because Hunter’s direct appeal is still pending, his § 2255 motion is premature.

Cook, 997 F.2d at 1319. Hunter argues his § 2255 motion contains an issue not raised in

his direct appeal—ineffective assistance of counsel—and indeed that issue usually cannot

be raised on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240-41 (10th

Cir. 1995) (en banc) (absent “rare instances” where an ineffective effective assistance of

counsel claim needs no further development, such claims “should be brought in collateral

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proceedings, not on direct appeal”; ineffective assistance of counsel claims “brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed”). But a

review of Hunter’s direct appeal reveals he has in fact raised an ineffective assistance of

counsel claim and has argued the claim should be decided on direct appeal because the

record is sufficiently developed. In any event, Hunter’s direct appeal challenges the

sentence he received for the revocation of his supervised release. Should he prevail, a §

2255 motion would be unnecessary. The orderly administration of criminal justice

supports the district court’s decision.3

       As no jurist of reason could reasonably debate the correctness of the district

court’s decision, we DENY the request for a COA and DISMISS this matter. We DENY

Hunter’s “Request for Transcripts and Documents.”

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge



       3
         In United States v. Prows, we entertained a defendant’s appeal of the denial of
his § 2255 motion even though the government’s direct appeal of defendant’s sentence
was pending. 448 F.3d 1223 (10th Cir. 2006). We noted other circuits had held there is
no jurisdictional bar to a district court’s adjudication of a § 2255 motion during the
pendency of a direct appeal and even our Cook decision did not preclude it where
“extraordinary circumstances” existed. Id. at 1228. We determined extraordinary
circumstances existed given the “complete dichotomy between the issues raised by the
government on direct appeal and those raised by Mr. Prows in his § 2255 motion, as well
as the fact that the government could effectively keep Mr. Prows in custody for years
while it exercises its appellate rights.” Id. at 1229. We also distinguished Cook because
it involved the defendant seeking to pursue multiple actions (an appeal and a § 2255
motion) which could potentially overlap. Id. Here, while the district court may have had
jurisdiction to entertain Hunter’s § 2255 motion, it did not err in not doing so especially
given his direct appeal and § 2255 motion have overlapping issues.

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