                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 18, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court




KEN NETH D. HILL,

              Petitioner - A ppellant,
                                                         No. 07-6090
                                                      (W .D. Oklahoma)
       v.
                                                    (D.C. No. 07-CV-69-C)
JOHN W HETSEL, Sheriff,

              Respondent - Appellee.



                                         OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.


      This matter is before the court on Kenneth H ill’s pro se request for a

certificate of appealability (“COA”). Hill seeks a COA so he can appeal the

district court’s dismissal without prejudice of his 28 U.S.C. § 2241 habeas corpus

petition. 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from “the

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, 869 (10th Cir. 2000) (holding

§ 2253(c)(1)(A)’s COA requirement applies to state prisoners proceeding under

§ 2241 when the petition relates to any of the “incidents and circumstances of any

detention pursuant to state court process”). Because Hill 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. 28 U.S.C. § 2253(c)(2).

      Hill was arrested by Oklahoma County officers on January 7, 2007. Four

days later, on January 11, 2007, Hill filed the instant § 2241 habeas corpus

petition claiming Oklahoma officials failed to timely charge him or to conduct a

timely hearing on probable cause. Six days later, on January 17, 2007, Hill was

formally charged on counts relating to possession of marijuana, cocaine, and drug

paraphernalia. In light of this procedural history (i.e., the filing of state charges

before any proceedings of substance on the merits of Hill’s § 2241 petition had

taken place in federal court), a magistrate judge issued an exhaustive and well-

stated Report and Recommendation recommending the district court abstain from

hearing Hill’s § 2241 petition pursuant to Younger v. Harris, 401 U.S. 37 (1971).

The district court adopted the Report and Recommendation and dismissed Hill’s

§ 2241 habeas petition without prejudice. See Morrow v. Winslow, 94 F.3d 1386,

1398 (10th Cir. 1996) (holding district court should have abstained pursuant to

Younger and, thus, remanding to district court to dismiss without prejudice).

      To be entitled to a COA, Hill must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate w hether (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

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proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In deciding whether Hill has carried his burden, this court undertakes

“a preliminary, though not definitive, consideration of the [legal] framew ork”

applicable to each of his claims. Id. at 338. Although Hill need not demonstrate

that his appeal will succeed to be entitled to a COA, he must “prove something

more than the absence of frivolity or the existence of mere good faith.” Id. at

337, 338 (quotations omitted).

      Having undertaken a review of Hill’s application for a COA and appellate

brief, the magistrate judge’s Report and Recommendation, the district court’s

Order, and the entire record on appeal pursuant to the framew ork set out by the

Supreme Court in M iller-El, this court concludes Hill is not entitled to a COA.

The district court’s conclusion Younger mandates abstention is not reasonably

subject to debate and Hill’s meritless arguments to the contrary are not adequate

to deserve further proceedings. Accordingly, this court DENIES his request for a

COA and DISM ISSES this appeal.

                                       ENTERED FOR THE COURT



                                       Elisabeth A . Shumaker, Clerk




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