McCloskey v. Wyoming Attorney General

710 F. App'x 788

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 5, 2018
• Docket: 17-8056
• Status: Unpublished

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Monroe G. McKay, Circuit Judge

Petitioner Richard McCloskey seeks a certificate of appealability to appeal the district court’s dismissal of his § 2254 ha-beas corpus petition.

In his habeas petition, Petitioner sought review of various state criminal proceedings against him. These proceedings were either recently decided cases that Petitioner had not appealed in the Wyoming state courts, or ongoing criminal cases in which a final judgment had not yet been entered. The district court thus concluded that the federal habeas petition must be dismissed without prejudice based on (1) Petitioner’s failure to exhaust his state court remedies, see 28 U.S.C. § 2254(b)(1)(A); see also Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009) (dismissal of a habeas petition is proper if the failure to exhaust is clear from the face of the petition), and (2) the Younger abstention doctrine, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

After thoroughly reviewing Petitioner’s brief and the record on appeal, we conclude that reasonable jurists would not debate the correctness of the district court’s procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We therefore DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis on appeal is GRANTED.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.