Deephouse v. Wyoming Supreme Court

Opinion

Appellate Case: 24-8007 Document: 010111062048 Date Filed: 06/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 7, 2024 _______________________________________ Christopher M. Wolpert Clerk of Court RICKY ALAN DEEPHOUSE,

Petitioner - Appellant,

v. No. 24-8007 (D.C. No. 1:23-CV-00162-SWS) WYOMING SUPREME COURT; STATE (D. Wyo.) OF WYOMING; WYOMING ATTORNEY GENERAL,

Respondents - Appellees, _______________________________________

ORDER _______________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _______________________________________

Mr. Ricky Deephouse was convicted in state court of third-degree

sexual abuse of a minor. Mr. Deephouse unsuccessfully sought federal

habeas relief and wants to appeal. To appeal, he needs a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A). We decline to issue the

certificate because Mr. Deephouse hasn’t exhausted his habeas claim.

The claim involves the correct charge. Mr. Deephouse argues that his

conviction should have been for sexual abuse in the fourth degree rather

than in the third degree.

Mr. Deephouse had also raised this claim in state district court. The

court rejected the claim, but Mr. Deephouse couldn’t resort to federal Appellate Case: 24-8007 Document: 010111062048 Date Filed: 06/07/2024 Page: 2

habeas proceedings until he exhausted the claim. 28 U.S.C. § 2254(b)(1).

So Mr. Deephouse appealed to the state supreme court. But before the state

supreme court had ruled, Mr. Deephouse reasserted the same claim in

federal district court in a bid for habeas relief. Because Mr. Deephouse

hadn’t exhausted the claim, the federal district court dismissed the habeas

petition.

We can issue a certificate of appeal only if the district court’s ruling

on exhaustion is reasonably debatable. Laurson v. Leyba, 507 F.3d 1230,

1231–32 (10th Cir. 2007). But Mr. Deephouse hasn’t identified any flaws

in the district court’s ruling on exhaustion. See Nixon v. City & Cnty. of

Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that an appellant

must “explain what was wrong with the reasoning that the district court

relied on in reaching its decision.”); Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (stating that even

unrepresented litigants must present an argument citing the record and

supporting legal authority). And no such flaws are apparent, for “state

remedies cannot be exhausted if an appeal from a state conviction is

pending.” Denney v. State of Kan., 436 F.2d 587, 588 (10th Cir. 1971).

Because Mr. Deephouse hasn’t presented a reasonably debatable

challenge to the district court’s ruling, we deny the request for a certificate

2 Appellate Case: 24-8007 Document: 010111062048 Date Filed: 06/07/2024 Page: 3

of appealability. And in the absence of a certificate, we dismiss the

appeal. 1

Entered for the Court

Robert E. Bacharach Circuit Judge

1 Mr. Deephouse separately seeks leave to appear in forma pauperis. Because he cannot afford to prepay the filing fee, we grant this request. 3