                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    February 15, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 CORTEZ EDW ARD W ALKER,

             Petitioner-A ppellant,                       No. 06-1406
       v.                                              06-CV -1252-ZLW
 ALLAN F. STANLEY, DEBORAH C.                       (D.C. No. D. Colorado)
 ALLEN , VERNE R. SAINT V INC ENT,
 TO M W AT ER S, and N A TH A N
 OLD ORF,

             Respondents-Appellees.



                                      OR DER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      This matter is before the court on Cortez W alker’s requests for a certificate

of appealability (“COA”) and to proceed on appeal in forma pauperis. W alker

seeks a COA so he can appeal the district court’s dismissal without prejudice of

his 28 U.S.C. § 2241 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing

that no appeal may be taken from a “final order in a habeas corpus proceeding in

which the detention complained of arises out of process issued by a state court”

unless the petitioner first obtains a COA); M ontez v. M cKinna, 208 F.3d 862, 867

(10th Cir. 2000) (holding that state prisoners proceeding under § 2241 cannot

appeal adverse district court judgments without first obtaining a COA). Because
W alker has not “made a substantial showing of the denial of a constitutional

right,” this court denies his request for a COA and dismisses this appeal.

W alker’s request for permission to proceed on appeal in form a pauperis is

likewise denied.

      W alker is in the custody of the Colorado Department of Corrections. In his

§ 2241 habeas corpus petition, W alker sought to challenge an order of the

Colorado Parole Board revoking his parole based on his violation of a special

parole condition, i.e., that he would not possess or use illegal drugs. In response,

the district court ordered W alker to show cause why his petition should not be

dismissed for failure to exhaust state court remedies. W hen W alker failed to

demonstrate he had exhausted his state court remedies, the district court

dismissed the petition without prejudice.

      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). To satisfy this

standard, W alker must show “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. M cDaniel, 529 U.S. 473, 484 (2000) (quotation

omitted). That is, W alker must show the district court’s resolution of his petition

was either “debatable or wrong.” Id. Because W alker’s petition was dismissed

on procedural grounds, he must make both a substantial showing of the denial of a

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constitutional right and also show “jurists of reason would find it debatable . . .

whether the district court was correct in its procedural ruling.” Id.

      On appeal, W alker argues the district court erred in raising the issue of

exhaustion sua sponte, and in dismissing on that basis, because the exhaustion

requirement is non-jurisdictional. Although it is true the exhaustion requirement

is non-jurisdictional, W alker’s arguments are otherw ise completely without merit.

As noted by the district court, exhaustion of state court remedies is a prerequisite

to filing a § 2241 habeas petition. M ontez v. M cKinna, 208 F.3d 862, 866 (10th

Cir. 2000). This court has specifically held, in the context of a 28 U.S.C. § 2254

petition, “that a court may raise the defense of nonexhaustion sua sponte.” Odom

v. Boone, 62 F.3d 327, 332 n.2 (10th Cir. 1995). This court has reached the same

result, in two unpublished dispositions, with regard to petitions brought under

§ 2241. M erritt, No. 00-1027, 2000 W L 1370432, at *1 (10th Cir. M ay 30,

2000); Holman v. Booker, No. 98-3124, 1998 W L 864018, at *4 (10th Cir. Dec.

14, 1998). Accordingly, W alker has failed to carry his burden of demonstrating




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the district court’s procedural ruling is reasonably subject to debate. W alker’s

requests for a COA and to proceed on appeal in forma pauperis are hereby

DENIED. The appeal is DISM ISSED. All pending motions are DENIED.

                                               Entered for the Court
                                               Elisabeth A . Shumaker, Clerk



                                               By:
                                                     Deputy Clerk




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