                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS                      May 23, 2017
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 MYOUN L. SAWYER,

       Petitioner - Appellant,
                                                        No. 17-3007
 v.                                            (D.C. No. 5:16-CV-03036-SAC)
                                                          (D. Kan.)
 THOMAS KINLEN,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, MURPHY, and MATHESON, Circuit Judges.


      Petitioner-Appellant Myoun Sawyer, a civilly-committed inmate appearing

pro se, seeks to appeal from the district court’s dismissal of his habeas petition.

Sawyer v. Kinlen, No. 5:16-cv-03036-SAC (D. Kan. Jan. 4, 2017) (unpublished);

see also 1 R. 30. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a),

and we deny a certificate of appealability (“COA”) and dismiss the appeal.

      Mr. Sawyer has been in and out of prison since 1991 for either pleading

guilty to or being convicted of attempted aggravated sexual battery, aggravated

battery, domestic battery, eight counts of lewd and lascivious behavior, and

criminal threat. In re Care & Treatment of Sawyer, No. 107,269, 2013 WL

5870034, at *1 (Kan. Ct. App. Oct. 25, 2013) (unpublished). A trial was held to
determine whether Mr. Sawyer qualified as a sexually violent predator (“SVP”), a

person who “ha[s] a mental abnormality or personality disorder and [is] likely to

engage in repeat acts of sexual violence if not treated for [his] mental abnormality

or personality disorder.” Kan. Stat. Ann. § 59-29a01. The Kansas Court of

Appeals agreed with the trial court that there was overwhelming evidence that Mr.

Sawyer was an SVP. In re Care & Treatment of Sawyer, 2013 WL 5870034,

at *6.

         On February 5, 2016, Mr. Sawyer filed his § 2254 petition, in which he

asserted that his SVP trial was not timely held under Kan. Stat. Ann. § 59-

29a06(a). 1 R. 7. The district court dismissed the petition because this argument

was not made before the state court and was therefore procedurally defaulted as

unexhausted. Id. at 31. Mr. Sawyer’s contention that ineffective assistance of

counsel caused the procedural default was unavailing because it too was

unexhausted. Id. at 32.

         To receive a COA, Mr. Sawyer must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell,

537 U.S. 322, 327 (2003). Because the district court dismissed the petition on a

procedural ground, Mr. Sawyer must also show 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).

         The district court’s decision is not reasonably debatable. Neither the

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timeliness argument nor the ineffective assistance of counsel argument was made

before the state court. Therefore, the district court could not address the merits of

Mr. Sawyer’s claims. 28 U.S.C. § 2254(b)(1)(A); see also Edwards v. Carpenter,

529 U.S. 446, 453 (2000); Coleman v. Thompson, 501 U.S. 722, 731 (1991).

Furthermore, Mr. Sawyer has not demonstrated that “denying review would result

in a fundamental miscarriage of justice” because he has not alleged actual

innocence. Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014).

      We DENY a COA, DENY IFP, and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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