                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS June 16, 2020
                                                              Christopher M. Wolpert
                                    TENTH CIRCUIT                 Clerk of Court



ERIC SHAWN RAY,

          Petitioner - Appellant,
                                                       No. 20-7010
                                           (D.C. No. 6:19-CV-00159-JHP-KEW)
v.
                                                        (E. Okla.)
SCOTT CROW, DOC Director,

          Respondent - Appellee.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.



      Eric Shawn Ray, a state inmate appearing pro se, seeks a certificate of

appealability (COA) so he can appeal the district court’s dismissal of his 28

U.S.C. § 2241 habeas petition. Because the district court's determination that Ray

failed to exhaust his available state remedies is not reasonably debatable, we

deny Ray’s request for a COA and dismiss this appeal. 1

      Ray is currently in the custody of the Oklahoma Department of Corrections,

having been convicted of domestic assault and battery resulting in great bodily


      1
       Ray’s motion for leave to amend and supplement his combined opening
brief and application for a certificate of appealability is granted.
harm. He filed the instant § 2241 petition on May 20, 2019, alleging he was

unlawfully seized in Texas and removed to Oklahoma. The petition also raised

claims of ineffective assistance of counsel. Respondent filed a motion to dismiss

Ray’s § 2241 petition, arguing he failed to exhaust his state remedies. See 28

U.S.C. § 2254(b)(1)(A) (requiring state prisoners to exhaust “the remedies

available in the courts of the State” before filing an application for a writ of

habeas corpus). The district court dismissed Ray’s habeas petition without

prejudice based on its conclusion that Ray’s direct appeal from his Oklahoma

conviction was still pending before the Oklahoma Court of Criminal Appeals. See

Coleman v. Thompson, 501 U.S. 722, 731 (1991) (holding a state prisoner’s

federal habeas petition must be dismissed if he has not exhausted his available

state court remedies); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)

(“A habeas petitioner is generally required to exhaust state remedies whether his

action is brought under § 2241 or § 2254.”).

      A state prisoner may appeal from the denial of federal habeas relief under

28 U.S.C. § 2241 only if the district court or this court first issues a COA.

Montez, 208 F.3d at 867 (holding a state prisoner must obtain a COA to appeal

the denial of a 28 U.S.C. § 2241 petition). This court cannot grant Ray a COA

unless we conclude he “has made a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). To meet that burden, Ray must demonstrate


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“that 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). Furthermore, where, as

here, the district court denied the “habeas petition on procedural grounds without

reaching the prisoner's underlying constitutional claim,” the prisoner must also

demonstrate “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.” Id.

      Ray has failed to meet his burden. Having reviewed the record, Ray’s

appellate filings, and the district court’s order, we conclude reasonable jurists

would not debate the correctness of the district court’s determination that Ray

failed to exhaust his available state remedies. Despite Ray’s assertions to the

contrary, he must exhaust his state remedies and he must obtain a COA. See

Montez, 208 F.3d at 866-67. Ray does not challenge the district court’s

conclusion that he did not seek state habeas corpus relief or show that any avenue




                                          -3-
of state relief is unavailable to him. 2 Accordingly, we deny Ray’s request for a

COA and dismiss this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




      2
       We take judicial notice of the public records in Ray’s Oklahoma criminal
case and note that he has raised issues related to his extradition from Texas to
Oklahoma in the criminal appeal (No. F-2019-437) currently pending before the
Oklahoma Court of Criminal Appeals.

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