* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### 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, th is 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). T he case is therefore ordered submitted without oral argument.-2-

This case is before the court on John Daniel’s pro se requests for a certificate of appealability (“COA”) and for permis sion to proceed on appeal in forma pauperis . Daniel seeks a COA so that he can appeal the dis trict 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 de tention 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 cons titutional 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 exhau stion 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 co urt 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, abriefing schedule had been set, and the Wyoming Supreme Court had clearly not abandoned the appeal. In-3-

these circumstances, the district court concluded t hat all parties would benefit from requiring the compete exhaustion of Daniel’s c laims. “When the district court denies a habeas petition o n procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that juris ts 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 b rief on appeal and application for COA, the respondent’s brief in opposition to th e grant of a COA, the district court’s order of dismissal, and the entire record o n appeal. Our review demonstrates the district court’s resolution of Dan iel’s § 2254 petition is not reasonably debatable. Accordingly, Daniel has not made “a substantial showing of the denial of a constitutional right” and is notentitled to a COA. 28 U.S.C. § 2253(c). This courtGRANTS Daniel’s request to proceed in forma pauperis , DENIES his request for a COA for substantially those reas ons set out in the-4-

district court’s order of dismissal dated July 23, 2002 and DISMISSES this appeal. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge