* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral 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 

### APR 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR R. STEWART,

Petitioner - Appellant, No. 00-3287
v. (D. Kansas) MIKE HILL, Sheriff; ATTORNEY GENERAL OF KANSAS,

Respondents - Appellees. (D.C. No. 00-CV-3278)

ORDER AND JUDGMENT *

Before HENRY , BALDOCK , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument.1 This document is appended to Mr. Stewart’s brief, but lacks both page

numbers and an index number. -2- Arthur R. Stewart, a state prisoner proceeding pro se, appeals the district court’s dismissal of his habeas corpus petition und er 28 U.S.C. § 2254, and its denial of his request for a certificate of appealab ility (COA). Because we agree with the district court that Mr. Stewart has failedto exhaust state remedies, we deny his request for a COA and dismiss this appeal. Mr. Stewart’s claim arises from the alleged failure of the District Court of Sedgwick County, Kansas, to respond to his “Motion For Discovery/Discharge or Conversion. . . to New Kansas Sentencing Grid.” 1 This motion states that under Kan. Stat. Ann. § 21-4724 (2000), Mr. Stewart is el igible for “conversion” of his pre-1993 sentence to new post-1993 guidelines. Suc h a conversion could potentially shorten his sentence. Mr. Stewart’s Sedgwick County motion was apparentlyfiled on or about June 12, 2000. On August 2, 2000, Mr. Stewart file d a petition for a writ of habeas corpus in federal district court. Arguing that the Sedgwick County court had failed to consider his sentencing motion, Mr. S tewart asked the district court to vacate his sentence and award him $2 million in damages. The district court dismissed Mr. Stewart’s habeas petition without pre judice for failure to exhaust state remedies, as his state petition appeared to b e still pending. Rec. doc. 3, at 1--3-

2 (Dist. Ct. Order, dated Aug. 7, 2000). On Mr. St ewart’s motion for reconsideration, the district court declined to rec onsider its decision or grant a certificate of appealability, finding that there wa s no evidence Mr. Stewart had attempted to pursue his claims in the Kansas appell ate courts. It did, however, grant him leave to proceed in forma pauperis on app eal. Rec. doc. 7, at 1 (Dist. Ct. Order, dated Sept. 11, 2000). We construe Mr. Stewart’s complaint liberally becau se he is proceeding pro se, although we will not act as his advocate. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). It seems that Mr. Stew art is asking for two alternative remedies, based on the alleged failure of the Sedgwick County court to respond to his motion. First, he asks that we orde r the Sedgwick County court to act on his motion, so as to enable him to immediate ly proceed through the state appellate process. See Aplt’s Br. at 4. This we cannot and should not do , as federal courts have no authority to issue a writ of mandamus to a state court. See Olson v. Hart , 965 F.2d 940, 942 (10th Cir. 1992). In the alternative, if we find the lack of a respon se from the state court excuses his failure to exhaust state remedies, Mr. Stewart asks that we grant him a certificate of appealability and rule on his habeas motion. See Clayton v. Gibson , 199 F.3d 1162, 1170 (10th Cir. 1999) (noting that “ [t]he exhaustion requirement-4-

is not jurisdictional,” and “may be waived by the s tate or avoided by the petitioner if an attempt to exhaust would be futile .”). We agree with the district court that Mr. Stewart h as not made a sufficient attempt to exhaust any available state remedies. If the Sedgwick County court has truly erred in failing to act on his motion, Mr. St ewart’s immediate remedy lies with the Kansas appellate courts. As there is no i ndication that Mr. Stewart has attempted to appeal, or to petition the Supreme Court of Kansas for a writ of mandamus, there is also no indication that such an attempt would be futile. See O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999) (a state prisoner must “ give the state courts an opportunity to act on his claims be fore he presents those claims to a federal court in a habeas petition”); Duckworth v. Serrano , 454 U.S. 1, 3 (1981) (per curiam) (stating that “[a]n exception is made only if there is no opportunity to obtain redress in state court or if the correcti ve process is so clearly deficient as to render futile any effort to obtain relief.”). In order to obtain a certificate of appealability, an appellant must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Mr. Stewart has made no such showing and his request for a certificate of appealability is DENIED. Accordingly, the appeal is hereby DISMISSED.-5- Entered for the Court,

Robert H. Henry Circuit Judge