* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 14 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES T. LEVIER, Petitioner - Appellant,

v. LOUIS BRUCE, Warden, Hutchinson Correctional Facility; ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents - Appellees. No. 02-3054 D.C. No. 01-CV-3302-DES (D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 We note the district court treated Mr. LeVier’s h abeas petition as falling

under 28 U.S.C. § 2254. However, because Mr. LeVie r’s challenge goes to the execution of his sentence, rather than its validity , we treat his petition as if filed under 28 U.S.C. § 2241. Montez v. McKinna , 208 F.3d 862, 864-65 (10th Cir. 2000).

2 On May 8, 1997, the district court issued an Orde r For Temporary Injunction releasing Mr. LeVier from incarceration, and reserving ruling on his -2- James T. LeVier, appearing pro se , seeks a Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to appeal the district court’s denial of his petition for habeas corpus. 1 The district court denied Mr. LeVier’s habeas petition for failing to exhaust his state court rem edies, and also denied his request for a COA. Exercising jurisdiction under 28 U.S.C. § 2253(c), we deny his renewed application for a COA. Mr. LeVier was convicted of second degree murder inJanuary 1978. In 1990, we issued a writ of habeas corpus reversing h is conviction. He was retried, found guilty of voluntary manslaughter, and sentenc ed to ten to forty years imprisonment. The sentence was deemed to have comm enced May 1, 1977, the day he was initially arrested for his criminal cond uct. In 1997, Mr. LeVier filed a state habeas corpus petition, alleging ex post facto application of regulations affecting his good time credits, and thereby extend ing his conditional release date. His state habeas petition was successful; a state d istrict court ordered all withheld good time credits applied to Mr. LeVier’s condition al release date. He was conditionally released from prison on May 12, 1997. 2constitutional challenge to changes in the allocati on of good time. On August 25,

1998, the district court issued an order finding th e withholding of good time in computing his conditional release date was an uncon stitutional, ex post facto, regulation. The district court reestablished his c onditional release date to what it would have been absent the unconstitutional withhol ding of good time: May 1, 1997.

3 In Karlowski v. Simmons, 954 P.2d 728, 730 (Kan. App., 1998), the Kansas Court of Appeals stated: K.S.A. 22-3718 specifically defines conditional rel ease as follows: ‘An inmate who has served the inmate's maximum termor terms, less such work and good behavior credits as have been earned, shall, upon release, be subject to such written rules and condi tions as the Kansas parole board may impose, until the expiration of th e maximum term or terms for which the inmate was sentenced or unti l the inmate is otherwise discharged.’

-3- In June 1998, Mr. LeVier was re-incarcerated for vi olating the terms of his conditional release. 3 Mr. LeVier then filed another state habeas action , claiming his twenty years of incarceration, combined with tw enty years of accumulated good time credits obtained under the regulations ineffect at the time he committed his crime, constituted a complete dischar ge of his forty-year prison term, and therefore he should no longer be subject to any conditions or controls by the state. The state district court denied reli ef, and the state court of appeals affirmed. Mr. LeVier did not seek review by the Ka nsas Supreme Court. He did file a mandamus action in state district court seek ing to enforce the order resulting from his 1997 habeas corpus petition, andcompel the prison authorities-4-

to release him. That action was dismissed as an in appropriate remedy. Mr. LeVier did not appeal the dismissal. In his federal habeas action, Mr. LeVier claimed he was unlawfully incarcerated because, with his good time credits, h e had fully served his state sentence, and argued that he should be excused fromthe federal habeas corpus exhaustion requirements. After considering Mr. LeV ier’s objections, the district court adopted the recommendation of the magistrate judge and denied the petition, reasoning that Mr. LeVier’s failure to timely appea l the adverse state court decisions prevented full exhaustion of his claims, thereby constituting a procedural default barring federal habeas review of his claims. The district court concluded Mr. LeVier did not show good cause excusi ng the default, together with actual prejudice, or demonstrate a manifest in justice. In order to appeal the denial of his § 2241 petitio n, Mr. LeVier must obtain a Certificate of Appealability ( Montez at 869), which may issue only if he makes “a substantial showing of the denial of a constitut ional right." 28 U.S.C. § 2253(c)(2). When a district court dismisses a habe as petition on procedural grounds, a COA will issue when jurists of reason wo uld find it debatable both whether the district court was correct in its proce dural ruling, and whether the petition states a valid claim of the denial of a co nstitutional right. Slack v. McDaniel , 529 U.S. 473, 484 (2000). As will be discussed b elow, after a review4 Mr. LeVier had thirty days to seek discretionary review by the Kansas

Supreme Court of the Court of Appeals decision upho lding the denial of his habeas petition. K AN . S TAT . ANN . § 20-3018(b). In order to exhaust his state court remedies on this issue, Mr. LeVier was requir ed to present his claims to the Kansas Supreme Court in a petition for discretionary review. O'Sullivan v. Boerckel , 526 U.S. 838, 839-40, 847 (1990). His failure to seek discretionary review constitutes a procedural default on those cl aims. Id. at 848. Also, Mr. LeVier had thirty days to appeal as a matter of rig ht the district court’s denial of his mandamus action. K AN . S TAT . ANN . § 60-2103(a); K AN . S TAT . ANN . § 60- 2102(a)(2). -5- of the record and applicable law, it is clear that “jurists of reason” would not debate the propriety of the district court’s decisi on to sustain the procedural bar. Like habeas petitions filed under 28 U.S.C. § 2254, exhaustion of state remedies is a predicate to § 2241 petitions. See Montezat 866. Here, Mr. LeVier failed to appeal the denial of his second state hab eas petition to the Kansas Supreme Court, as well as his unsuccessful mandamus action to the Kansas Court of Appeals. 4 Thus, he failed to fully exhaust his state court remedies. Mr. LeVier merely claims it would have been futile to appeal t hese unfavorable decisions, but makes no showing of futility. Where, as here, full exhaustion is precluded by the petitioner’s failure to timely appeal the adverse state decisions, he is ba rred from federal habeas review of his claims. In all cases in which a state prisoner has defaulte d his federal claims in state court pursuant to an independent and adequ ate state procedural rule, federal habeas review of the claim s is barred unless the prisoner can demonstrate cause for the default and actual5 The miscarriage of justice exception requires a " habeas petitioner to show

that ‘a constitutional violation has probably resul ted in the conviction of one who is actually innocent.’" Schlup v. Delo , 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier , 477 U.S. 478, 496 (1986)). -6- prejudice as a result of the alleged violation of f ederal law, or demonstrate that failure to consider the claims wil l result in a fundamental miscarriage of justice. Coleman v. Thompson , 501 U.S. 722, 750 (1991). 5
Mr. LeVier claims the failure to review his habeas petition on the merits will result in a fundamental miscarriage of justice . However, he may not invoke the fundamental miscarriage of justice exception to his procedural default, because no showing has been made, nor is there any indication, that he was actually innocent and his conviction resulted from a constitutional violation. Further, Mr. LeVier’s mere recitation of futility i s insufficient to demonstrate a valid cause for his default. Therefore, as the dis trict court correctly found, Mr. LeVier’s procedural default barred review on the me rits of his federal habeas claim. For the reasons stated, Mr. LeVier’s application fo r a Certificate of Appealability is DENIED , and this case is DISMISSED

. Entered for the Court:

TERRENCE L. O’BRIEN United States Circuit Judge