                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 March 12, 2013
                                TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                  Clerk of Court

 JAMES L. BROWN, SR.,

              Petitioner-Appellant,                    No. 12-3320
                                              (D.C. No. 5:12-CV-03001-SAC)
 v.                                                     (D. of Kan.)
 STATE OF KANSAS,

              Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON, and TYMKOVICH, Circuit
Judges. **


      James L. Brown, Sr., is a pretrial detainee in Sedgwick County jail in

Wichita, Kansas. He was arrested on July 12, 2011 and charged with rape,

indecent solicitation, and kidnaping, along with other offenses. Brown filed a pro

se pleading titled as a “Motion to File a Complaint and Request a Hearing” in the

district court. In his pleading, Brown also sought a federal investigation of his



      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
claims that the arresting detective had lied in the affidavit supporting his arrest

warrant. Because Brown is awaiting trial, the district court construed his motion

as a petition for habeas corpus under 28 U.S.C. § 2241. The court dismissed

Brown’s petition without prejudice because he had not exhausted his state

remedies and abstention from his state court prosecution was warranted under

Younger v. Harris, 401 U.S. 37 (1971). After Brown filed a notice of appeal, the

court granted Brown’s motion to proceed on appeal in forma pauperis but issued

no certificate of appealability (COA).

      Brown now seeks a COA to enable him to appeal the district court’s

dismissal of his § 2241 petition. See Montez v. McKinna, 208 F.3d 862, 867 (10th

Cir. 2000) (detainee must obtain COA to appeal denial of petition when detention

arises out of state court proceeding). A COA may issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This requires the applicant to show “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) (citation and internal quotation marks omitted). Brown is unable to

make this showing.

      Brown’s claim is that the detective who arrested him lied in the affidavit

supporting Brown’s arrest warrant. Brown contends he requested in state court a

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hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to determine the

validity of the affidavit, but that the court has not granted his request. Brown

also complains that he has received ineffective assistance of counsel because his

counsel—due to criminal sex charges—allegedly had been disbarred at the time

he represented Brown at his preliminary hearing.

      Brown acknowledges the district court’s ruling below that he must exhaust

his state court remedies before seeking relief from the federal courts, but contends

that he is unable to do so because all the motions he files in Sedgwick County

Court are automatically sent to his attorney. Brown’s apparent difficulty in

obtaining relief from the state courts thus far does not satisfy the requirement that

a petitioner must exhaust all state remedies before petitioning the federal courts.

Brown will still be able to raise these alleged errors in his criminal proceedings at

trial. In short, he has not satisfied the exhaustion requirement.

      Because of Brown’s failure to exhaust, we conclude that no reasonable

jurist would debate how the district court resolved the matter. Accordingly, we

DENY the request for a COA and DISMISS the appeal.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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