                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 7 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CHARLES MEDICINE BLANKET,

          Petitioner - Appellant,
 v.                                                     No. 01-1513
                                                    (D.C. No. 01-Z-1936)
 GARY WATKINS, Warden;                                 (D. Colorado)
 ROSEBUD INDIAN RESERVATION
 POLICE; U.S. MARSHAL’S
 SERVICE,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, MCKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Charles Medicine Blanket, an inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying his habeas petition brought pursuant to 28 U.S.C § 2254.

We agree with the district court’s conclusion that Mr. Medicine Blanket has not

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
exhausted his state court remedies, and we deny the COA and dismiss the appeal.

      In September 1997, the Rosebud Indian Reservation Tribal Police, acting

on a federal warrant, arrested Mr. Medicine Blanket in South Dakota and turned

him over to federal marshals who then transported him to a county jail in Rapid

City, South Dakota. After an extradition hearing, Mr. Medicine Blanket was

transported to Colorado where he was tried and convicted of five counts of sexual

assault and two counts of crimes of violence, and sentenced to 55 years in

Colorado state prison.

      Mr. Medicine Blanket’s habeas petition challenges the validity of the arrest

warrant, which he claims was obtained unlawfully. Further, he claims that the

tribal requirements for extradition were violated when he was transported to

Rapid City. Finally, he claims that he was denied his right to representation by

counsel at the extradition hearing that was held. However, Mr. Medicine Blanket

has not brought these issues to the Colorado Supreme Court.

      This is Mr. Medicine Blanket’s second habeas petition. His first petition

was dismissed without prejudice for failure to exhaust state remedies by the

federal district court in Colorado. Medicine Blanket v. Gary Watkins, No. 00-ES-

2487 (D. Colo. Jan. 18, 2001). Mr. Medicine Blanket then filed a habeas petition

in federal district court in South Dakota in September 2001, alleging the same

issues. After concluding that proper venue lay in Colorado, the court transferred


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the case there. The Colorado federal court again denied his application for a

COA and dismissed the action without prejudice for failure to exhaust state

remedies. Mr. Medicine Blanket seeks to appeal from that decision.

      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 state prisoner

bringing a federal habeas petition must show that he has exhausted the remedies

available in the courts of the State. 28 U.S.C. § 2254(b)(1)(A). The exhaustion

requirement is satisfied if the federal issue has been fairly presented to the highest

state court, either by a direct review of the conviction or in a post-conviction

attack. Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

The petitioner bears the burden of showing satisfaction of the exhaustion

requirement. Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995).

      To determine whether Mr. Medicine Blanket is entitled to a COA when the

district court has denied a habeas petition on procedural grounds, we examine

whether he has shown “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, 478 (2000).

      Mr. Medicine Blanket asserts that the Colorado state courts have no

jurisdiction over the Rosebud Reservation or over the marshals who arrested him


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there. Accordingly, he argues, he is entitled to an exception to the requirement

for state exhaustion either because (i) of an absence of a State corrective process,

or (ii) circumstances are such that the state process would be ineffective to

protect his rights. 28 U.S.C. § 2254(b)(1)(B).

      The relevant party in a habeas action is the person holding the prisoner in

what is alleged to be unlawful custody. Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 494-95 (1973). In this case that is his present custodian,

the warden at the Limon Correctional Facility, over whom the Colorado courts

have jurisdiction. Therefore, there is an effective state process available to

protect his rights. He must take these matters to the Colorado courts and exhaust

these claims before filing a petition for habeas corpus. Further, it is not debatable

that Mr. Medicine Blanket’s proffered reason for not exhausting–that the State of

Colorado lacks jurisdiction over these claims–lacks merit. Thus, Mr. Medicine

Blanket does not qualify for either exception and he must exhaust his state

remedies prior to seeking federal habeas corpus relief. 28 U.S.C. § 2254 (b)(1).

      We DENY Mr. Medicine Blanket’s request for a COA, DENY IFP, and

DISMISS this appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge

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