*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### JUL 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARNETT R. LEACOCK, Petitioner-Appellant,

v. GARY L. HENMAN, Warden, Leavenworth Prison, Respondent-Appellee. No. 97-3034 (D.C. No. 92-3395-RDR) (D.Kan.)

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Petitioner Garnett R. Leacock, appearing pro se andproceeding in forma pauperis, requests a certificate of appealability t o appeal the district court's denial-2-

of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We conclude Leacock is not entitled to a certificate of appealability a nd dismiss the appeal. Leacock is currently confined in a federal facility in Atlanta, Georgia, but he was confined at the federal penitentiary in Leav enworth, Kansas, when he filed his petition in 1992. Leacock sought to challenge federal and state convictions for escape, claiming prison officials and federal m arshals violated his right to self-representation by interfering with his mail an d misplacing legal documents. The district court construed the petition as a Bive ns action and dismissed it. On appeal, we reversed and remanded, concluding the pe tition should have been construed under both 28 U.S.C. § 2254 and § 2255. Leacock v. Henman , 996 F.2d 1069, 1071 (10th Cir. 1993). On remand, the d istrict court was directed to dismiss the § 2255 portion of the petition challeng ing Leacock's federal escape conviction without prejudice to allow him to refile in federal court in New York (where he was convicted). With respect to the § 22 54 portion of the petition, we noted it was unclear whether Leacock had exhausted his state remedies in New York and directed the district court to make such d etermination and, if necessary, to dismiss the action without prejudice to allow Le acock to exhaust his state court remedies. The district court followed our directive and dismi ssed the § 2255 portion of the petition. The court ordered Leacock to show cause why his § 2254-3-

challenge to his New York state conviction should n ot be dismissed without prejudice for failure to exhaust state court remedi es. In response, Leacock stated he had "in fact exhausted his available state remed ies," but he did not provide any specifics in support of his statement. Appendix I, tab 20. Accordingly, the court dismissed the § 2254 portion of the petition without prejudice. Leacock filed a motion for reconsideration asking the district court to "require the State of New York to respond so that the Court can determine if the exhaustion requirements have been satisfied." Appendix I, tab 22. The mot ion for reconsideration was denied and the district court denied Leacock a cert ificate of appealability. The Antiterrorism and Effective Death Penalty Act ( AEDPA) requires a § 2254 petitioner to obtain a certificate of appealab ility prior to appealing a final order of the district court. 28 U.S.C. § 2253(c)(1 )(A). A habeas petitioner is entitled to a certificate of appealability only if he has made a "substantial showing of the denial of a constitutional right." 28 U.S.C . § 2253(c)(2). We have held that the standard for granting a certificate of app ealability under the AEDPA is the same as the standard set out by the Supreme Cou rt in Barefoot v. Estelle , 463 U.S. 880 (1983). See Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied117 S. Ct. 746 (1997). Under the Barefootstandard, a certificate will issue only where the petitioner has demonstrated th e issues raised are debatable among jurists of reason, a court could resolve the issues differently, or the-4-

questions presented are deserving of further procee dings. See Barefoot , 463 U.S. at 893 n.4. A person seeking habeas relief under § 2254 must fi rst exhaust the remedies available in the courts of the state of co nviction. See 28 U.S.C. § 2254(b). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the me aning of this section, if he has the right under the law of the State to raise, by a ny available procedure, the question presented." 28 U.S.C. § 2254(c). Having reviewed the record on appeal, we agree with the district court that Leacock has f ailed to demonstrate exhaustion of his state court remedies. In particular, he has not demonstrated through copies of state court pleadings or through his own allegat ions that he directly appealed his state conviction or sought post-conviction reli ef in state court. Absent any indication that he has done so, and absent any info rmation concerning the issues raised in state court, Leacock has not satisfied th e exhaustion requirement of § 2254(b). The application for a certificate of appealability is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge