                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 12, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT


 CHARLES A. CHAMBERS,

               Petitioner - Appellant,                  No. 07-3306
          v.                                            (D. Kansas)
 STATE OF KANSAS; EMMALEE                        (D.C. No. 07-CV-3136-SAC)
 CONOVER, Warden, Winfield
 Correctional Facility,

               Respondents - Appellees .



                                         ORDER


Before HENRY, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.


      Charles Chambers, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his Writ of Habeas

Corpus petition pursuant to 28 U.S.C. § 2241. For substantially the same reasons

set forth by the district court – namely that Mr. Chambers has failed to exhaust

available state court remedies – we deny the application for COA and dismiss the

matter.

                                 I. BACKGROUND

      Mr. Chambers is in the custody of the State of Kansas, having been

sentenced to concurrent sentences for possession of methamphetamine with intent
to sell (49 months), possession of marijuana (12 months), forgery (19 months),

and theft (15 months). On August 16, 2006, Mr. Chambers filed a state habeas

petition pursuant to K AN . S TAT . A NN . § 60-1507. He argues, in a series of

numerous filings, that the Kansas Department of Corrections improperly

calculated his jail-time credits, based on its misinterpretation of Kansas law. His

case was initially transferred to Reno County, but then was transferred back to

Sedgwick County. On December 7, 2006, the Sedgwick County District Court

granted another change of venue motion, moving the case to Cowley County. The

Cowley County court has yet to address the claims on the merits.

      On May 8, 2007, Mr. Chambers filed a “Motionary Statement for Sentence

Correction Relief,” in federal district court, in which he argued that he was

entitled to relief under Federal Rule of Criminal Procedure 35. In a June 12, 2007

order, the district court noted that the federal criminal rule does not apply to Mr.

Chambers’s state sentence, and liberally construed the pro se pleading as seeking

habeas corpus relief under 28 U.S.C. § 2241. The Department of Corrections

responded with a motion to dismiss, based on the fact that the claims had yet to

be addressed on the merits in state court since the change of venue to Cowley

County. Shortly thereafter, Mr. Chambers filed a motion for summary judgment

citing cases in which Kansas was found to have improperly applied jail-time

credits, to argue that respondents’ defenses were barred by res judicata. On

October 4, 2007, the federal district court dismissed Mr. Chambers’s § 2241

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petition without prejudice because he had not exhausted his state court remedies

or shown that such remedies are “‘unavailable’” or would be “‘ineffective under

the circumstances.’” Rec. doc. 15, at 3 (quoting 28 U.S.C. § 2254(b)(1)). On

October 18, 2007, the district court, construed his notice of appeal as a request for

a COA, which it denied .



                                  II. DISCUSSION

      Mr. Chambers must obtain a COA in order to challenge the district court’s

dismissal of his habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 335-36

(10th Cir. 2003). In order to obtain a COA, Mr. Chambers must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). When a district court denies a habeas petition on procedural grounds,

as here, a COA should issue only if reasonable jurists would find it debatable

both that “the petition states a valid claim of the denial of a constitutional right”

and “the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

      Because Mr. Chambers failed to exhaust his state court remedies,

reasonable jurists could not debate the district court’s procedural ruling. 28

U.S.C. § 2254(b)(1) provides that habeas relief shall not be granted unless:

      (A) the applicant has exhausted the remedies available in the courts of
      the State; or
      (B)(i) there is an absence of available State corrective process; or

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      (ii) circumstances exist that render such process ineffective to protect
      the rights of the applicant.


      Absent exceptional circumstances, a federal court will not entertain habeas

claims until the petitioner has exhausted available state court remedies. Picard v.

Connor, 404 U.S. 270, 275 (1971). “The exhaustion requirement is satisfied if

the federal issue has been properly presented to the highest state court, either by

direct review of the conviction or in a postconviction attack.” Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Mr. Chambers argues that he

has exhausted state court remedies because the change of venue to Cowley

County was never actually entered. As both Mr. Chambers and the district court

note, proceedings in Cowley County have stalled. See Rec. doc. 15, at 3 (noting

that the state court proceeding “appears to be presently stalled in the process of

changing venue of petitioner’s action to another state district court . . . .”).

      Though the change of venue was granted December 7, 2006, on June 13,

2007, the Cowley County clerk responded to Mr. Chambers’s inquiry about the

status of his case by saying only, “We have not received anything to date.” Rec.

doc. 7, at 4 (“Show Cause Exhibit”). The burden is on Mr. Chambers to show

that he exhausted his state court remedies. Hernandez v. Starbuck, 69 F.3d 1089,

1092 (10th Cir. 1995). One inquiry to the Cowley County clerk about the status

of his mandamus petition is insufficient to demonstrate that state court remedies

are either unavailable or ineffective under the circumstances. See § 2254(b)(1).

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However, we expect that by now, fourteen months after the change of venue was

granted, Cowley County has received notice and we eagerly await that court’s

decision.

      As for Mr. Chambers’s arguments that the doctrine of res judicata bars the

State’s motion to dismiss, we agree with the district court that no facts or law

support the application of that doctrine in the present case.



                                III. CONCLUSION

      For the foregoing reasons, since no reasonable jury could debate whether

the district court’s procedural ruling was correct, we DENY the application for

COA and DISMISS the matter.



                                                     Entered for the Court,



                                                     Robert H. Henry
                                                     Chief Judge




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