*This order and judgment is not binding precedent, except under the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

JAN 27 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN A. DANIEL,

Petitioner - Appellant,

v.

JUDY UPHOFF, Director, Wyoming

Department of Corrections, in her

official capacity; ATTORNEY

GENERAL FOR THE STATE OF

WYOMING,

Respondents - Appellees.

No. 02-8075

D.C. No. 02-CV-6-B

(D. Wyoming)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
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This case is before the court on John Daniel’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Daniel seeks a COA so that he can appeal the district court’s

dismissal without prejudice of his 28 U.S.C. § 2254 habeas petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from “the final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a state court” unless the petitioner first obtains a COA). 

We grant Daniel’s request to proceed in forma pauperis. Because Daniel has not

made “a substantial showing of the denial of a constitutional right,” however, this

court denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2).

The district court dismissed Daniel’s § 2254 habeas petition without

prejudice because Daniel had not yet exhausted his state court remedies. See

generally Rose v. Lundy, 455 U.S. 509 (1992); 28 U.S.C. § 2254(b)(1). In so

doing, the district court recognized that the exhaustion requirement may be

excused where a state court appeals process is not effective. See Harris v.

Champion, 15 F.3d 1538, 1546 (10th Cir. 1994). Although Daniel’s direct appeal

had been pending for several years, the district court concluded that much of the

delay was occasioned by Daniel’s own counsel. Furthermore, the district court

noted that the appellate record was now complete, a briefing schedule had been

set, and the Wyoming Supreme Court had clearly not abandoned the appeal. In
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these circumstances, the district court concluded that all parties would benefit

from requiring the compete exhaustion of Daniel’s claims.

“When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). This court has closely reviewed Daniel’s brief on appeal and application

for COA, the respondent’s brief in opposition to the grant of a COA, the district

court’s order of dismissal, and the entire record on appeal. Our review

demonstrates the district court’s resolution of Daniel’s § 2254 petition is not

reasonably debatable. Accordingly, Daniel has not made “a substantial showing

of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §

2253(c). This court GRANTS Daniel’s request to proceed in forma pauperis, 

DENIES his request for a COA for substantially those reasons set out in the 
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district court’s order of dismissal dated July 23, 2002 and DISMISSES this

appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge