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

                             FOR THE TENTH CIRCUIT                             November 28, 2017
                         _________________________________
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
EARL R. MAYFIELD,

      Petitioner - Appellant,

v.                                                             No. 17-2107
                                                   (D.C. No. 1:17-CV-00193-JCH-KRS)
TOM RUIZ,                                                        (D.N.M.)

      Respondent - Appellee.
                      _________________________________

                                   ORDER
                   DENYING CERTIFICATE OF APPEALBILITY
                      _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

       Plaintiff-Appellant Earl R. Mayfield, appearing pro se, seeks a certificate of

appealability (COA) to challenge the district court’s dismissal without prejudice of his

habeas corpus petition, 28 U.S.C. § 2254. Mayfield v. Ruiz, No. 17-CV-00193-JCH-

KRS, 2017 WL 3168972, at *3 (D.N.M. May 19, 2017). We deny his application for a

COA and dismiss the appeal.

       On February 1, 2017, Mr. Mayfield was convicted of trafficking controlled

substances, tampering with evidence, and resisting, evading, or obstructing an officer. Id.

at *1. He was sentenced by the state court to 19 years’ imprisonment. Id. On February

6, 2017, he filed a federal habeas petition. Id. The district court noted that his direct

appeal was still pending in the New Mexico Court of Appeals, State of New Mexico v.
Earl Mayfield, No. D-202-CR-2012-02229 (N.M. Ct. App. appeal docketed Sept. 19,

2017), and therefore dismissed his petition without prejudice for failure to exhaust state

court remedies. Mayfield, 2017 WL 3168972, at *3.

       We may grant a COA only if Mr. Mayfield establishes 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).

Here, the district court denied Mr. Mayfield’s habeas petition on procedural grounds for

failure to exhaust state court remedies. Mayfield, 2017 WL 3168972, at *3. Reasonable

jurists would not debate the correctness of the district court’s decision to dismiss Mr.

Mayfield’s claims on procedural grounds.

       Under 28 U.S.C. § 2254(b)(1)(A), an application for a writ of habeas corpus

requires a showing of exhaustion. A federal court should not grant an application for a

writ of habeas corpus by a state prisoner unless the prisoner has “give[n] the state courts

one full opportunity to resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). Mr. Mayfield has not given the New Mexico state courts such an

opportunity. His appeal is still pending before the New Mexico Court of Appeals. See

Mayfield, No. D-202-CR-2012-02229.




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      Therefore, we DENY Mr. Mayfield’s request for a COA, DENY his motion to

proceed in forma pauperis (IFP), and DISMISS the appeal.



                                          Entered for the Court


                                          Paul J Kelly, Jr.
                                          Circuit Judge




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