                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             June 2, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

 LARRIANTE J. SUMBRY,

       Petitioner - Appellant,                     Nos. 05-3028 & 05-2045
                                                          D. Kansas
 v.                                              (D.Ct. No. 04-CV-3496-SAC)
                                                              and
 CECIL DAVIS,                                           D. New Mexico
                                               (D.Ct. No. CIV-04-1437 JB/ACT)
       Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY
                    AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is

therefore ordered submitted without oral argument.

      Mr. Sumbry is a promiscuous as well as a frivolous filer. These pro se

appeals are from federal district courts in New Mexico (05-2045) and Kansas (05-

3028). They are consolidated for administrative purposes.

      Mr. Sumbry was convicted in the Indiana state courts and is incarcerated in

Indiana. He filed an “Instant Uniform Treaty Writ of Habeas Corpus” in the
United States District Court for the District of New Mexico alleging he was

illegally arrested in Indiana and the Indiana courts were without jurisdiction. The

district court construed the filing as an application under 28 U.S.C. § 2254 and

dismissed it without prejudice to his right to pursue his claims in an appropriate

forum. It observed that while his “application may not be ‘clearly doomed, ’ [] he

presents no factual basis for the relief he seeks.” (R., Vol. I, Doc. 5, citing

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000)). The court denied his

request for a certificate of appealability (COA), but permitted him to appeal in

forma pauperis (ifp). Mr. Sumbry has renewed his request for COA in this Court.

      Mr. Sumbry also filed a petition for habeas corpus in the United States

District Court for the District of Kansas. The district court noted the following:

      The petition reflects that petitioner was arrested in June 1998 by
      Gary [Indiana] police. Neither the petition nor attachments suggest
      any basis for the exercise of jurisdiction by this court, as it appears
      that all relevant events occurred in the State of Indiana. Petitioner
      must file any federal habeas corpus action relating to an Indiana
      conviction in the federal courts for the District of Indiana.

(R., Doc. 2 at 1.) It then directed him to show cause why the petition should not

be dismissed for lack of jurisdiction. It also observed:

      [P]etitioner is familiar with the federal courts in Indiana and that he
      is subject to prior restrictions against filing civil actions. See
      Montgomery v. Davis, 362 F.3d 956 (7th Cir. 2004) (upholding
      sanctions against petitioner and another prisoner which include a
      prohibition against filing a habeas corpus action unless it challenged
      a state criminal judgment).


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(Id. at 1 n.1.)

The court later considered his response, stating:

       The court also has reviewed petitioner’s response to the order to
       show cause and concludes the petitioner has failed to identify any
       legal grounds under which this court has jurisdiction to consider
       petitioner’s challenge to an Indiana state conviction. As the court
       explained in its earlier order, petitioner must pursue habeas corpus
       relief related to that conviction in the federal courts for the District
       of Indiana.

(R., Doc. 4 at 1.) It dismissed for lack of jurisdiction and denied COA. The

district court also denied ifp status, but did not make the required certification.

Mr. Sumbry has renewed his request for COA in this Court.

       We GRANT Mr. Sumbry’s motion to proceed ifp but DENY a COA in 05-

3028 for substantially the same reasons stated by the United States District Court

for the District of Kansas. For substantially the same reasons stated by the United

States District Court for the District of New Mexico, we DENY COA in 05-2045.



                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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