                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 December 14, 2010
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

KEITH E. FRAZIER,

             Petitioner - Appellant,

v.
                                                        No. 10-1389
                                              (D.C. No. 1:08-CV-02427-CMA)
PEOPLE OF THE STATE OF
                                                       (D. Colorado)
COLORADO; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      This matter is before the court on Keith Frazier’s pro se requests for a

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

Frazier seeks a COA so he can appeal 1 the district court’s dismissal, on the basis

of lack of subject matter jurisdiction, of his 28 U.S.C. § 2241 petition. See

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


      1
       Upon review of the parties’ jurisdictional submissions, it is clear that
Frazier placed his notice of appeal in the prison mail system within thirty days of
the entry of the district court’s judgment. Accordingly, Frazier’s notice of appeal
is timely filed pursuant to the prison mailbox rule. Fed. R. App. P. 4(c)(1);
Prince v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005).
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); Montez

v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A)’s

requirements apply when a state habeas petitioner is proceeding under § 2241).

We grant Frazier’s motion to proceed on appeal in forma pauperis. Because,

however, Frazier has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      In 1997 Frazier pleaded guilty, in Colorado state court, to two misdemeanor

counts of indecent exposure to a person under the age of fifteen, in violation of

Colo. Rev. Stat. § 18-7-203. By operation of Colorado law, Frazier’s convictions

for indecent exposure required that he register as a sex offender and comply with

the provisions of the Colorado Sex Offender Registration Act. Id. §§ 16-22-103, -

108. Frazier completed his sentence on the indecent exposure convictions and

was released from incarceration on July 3, 2001. Shortly thereafter, however, he

was convicted of additional crimes and is currently serving a term of

incarceration in the custody of the Colorado Department of Corrections.

      On July 6, 2006, Frazier filed in county court for Weld County, pursuant to

Colo. Rev. Stat. § 16-22-113(1)(c), 2 a petition to discontinue sex offender

      2
          Section 16-22-113(1)(c) provides as follows:

                                                                        (continued...)

                                          -2-
registration. The county court denied Frazier’s petition. Frazier then appealed to

the Weld County District Court. The district court affirmed the denial of

Frazier’s petition, concluding it was based on a misreading of § 16-22-113(1)(c).

In particular, the district court interpreted § 16-22-113(c)(1) as requiring a

registrant to be out of prison and living as a member of the community for five

years as a prerequisite to petitioning the trial court to discontinue the registration

requirement. Thus, the district court concluded, in essence, that the five-year

period to discontinue registration set out in § 16-22-113(1)(c) was tolled during

the time of Frazier’s current incarceration and would not begin to run until

Frazier finished his current, unrelated period of incarceration.

      Frazier then filed the instant § 2241 petition in Federal district court,

asserting the state court’s refusal to discontinue his registration requirement

      2
       (...continued)
             (1) . . . [A]ny person required to register pursuant to section
      16-22-103 . . . may file a petition with the court that issued the order
      of judgment for the conviction that requires the person to register for
      an order that discontinues the requirement for such registration . . .
      as follows:

             (c) . . . if the offense that required such person to
             register constituted or would constitute a misdemeanor
             other than the class 1 misdemeanor of unlawful sexual
             contact, . . . after a period of five years from the date of
             such person’s final release from the jurisdiction of the
             court for such offense, if such person has not
             subsequently been convicted of unlawful sexual
             behavior or of any other offense, the underlying factual
             basis of which involved unlawful sexual behavior.


                                          -3-
violated his rights under the Eighth and Fourteenth Amendments. The district

court dismissed Frazier’s petition for lack of subject matter jurisdiction,

concluding that Frazier did not satisfy § 2241’s “in custody” requirement. See

28 U.S.C. § 2241(c)(3) (providing that the “writ of habeas corpus shall not

extend” unless the petitioner “is in custody in violation of the Constitution or

laws or treaties of the United States”). In so concluding, the district court noted

that courts had consistently held that being subject to a sex offender registration

scheme did not amount to custody.

      The granting of a COA is a jurisdictional prerequisite to Frazier’s appeal

from the denial of his § 2241 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Frazier 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 “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.” Id. (quotations omitted). When a district court dismisses a

§ 2241 motion on procedural grounds, a movant is entitled to a COA only if he

shows both that reasonable jurists would find it debatable whether he had stated a

valid constitutional claim and debatable whether the district court’s procedural

ruling was correct. Slack v. McDaniel, 529 U.S. 474, 484-85 (2000). In

evaluating whether Frazier has satisfied his burden, this court undertakes “a

                                          -4-
preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 537 U.S. at 338. Although Frazier

need not demonstrate 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.

      This court need not decide whether the district court’s jurisdictional ruling

is debatable because reasonable jurists would not find it debatable whether

Frazier’s § 2241 petition stated a valid constitutional claim. See Gibson v.

Klinger, 232 F.3d 799, 803 (10th Cir. 2000) (noting in similar procedural context

that this court “will only take a quick look at the federal habeas petition to

determine whether [the petitioner] has facially alleged the denial of a

constitutional right” (quotation and alteration omitted)). At their bases, all of

Frazier’s claims for relief rely on the following necessary assertion: the Colorado

state courts misinterpreted § 16-22-113(1)(c) in concluding the five-year period

therein does not run while a registrant is incarcerated. This pure matter of state

law is simply not cognizable in habeas. Johnson v. Mullin, 505 F.3d 1128, 1141

(10th Cir. 2007). Furthermore, because Frazier’s “constitutional” claims all

depend entirely on his assertion Colorado courts have misinterpreted Colorado

law, it is simply not debatable that those claims are facially invalid.

      Because Frazier asks this court to examine a question of state law, he does

not make a “substantial showing of the denial of a constitutional right.” 28

                                          -5-
U.S.C. § 2253(c)(2). Accordingly, this court DENIES Frazier’s request for a

COA and DISMISSES this appeal.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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