UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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JAMES H. HUNTER, 

 Petitioner - Appellant,

v.

DEAN WILLIAMS, 

 Respondent - Appellee.

No. 20-1307

(D.C. No. 1:20-CV-01562-LTB-GPG)

(D. Colo.)

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

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James Hunter, a Colorado prisoner proceeding pro se,

1 seeks a certificate of

appealability (COA) and leave to proceed in forma pauperis to bring a 28 U.S.C. § 2241

application before this Court. Exercising jurisdiction under 28 U.S.C. § 1291, we deny 

both of Hunter’s requests and dismiss this matter.

BACKGROUND

Hunter filed an Application for a Writ of Habeas Corpus under 28 U.S.C. § 2241

* This order is not binding precedent, except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We construe this application liberally because Hunter is a pro se litigant. See 

Haines v. Kerner, 404 U.S. 519, 520–21 (1972). But we cannot advocate on Hunter’s 

behalf. Hall v. Bellmon, 935 F.2d 1106. 1110 (10th Cir. 1991). 

FILED

United States Court of Appeals

Tenth Circuit

October 9, 2020

Christopher M. Wolpert

Clerk of Court
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(the “Application”) in the United States District Court for the District of Colorado. In it, 

he asserts one claim: “Denied Due-Process in a direct appeal and postconviction Pursuant 

to Harris v. Chapman, 48 F.3d 1127, 1132 (10th Cir. 1995).” R. at 5. He states that he is 

“still seeking justice 20 years later” for his conviction because he has been denied an 

expert witness and “effective assistance of counsel by three different attorneys.” Id. at 5.

Hunter does not clarify which issues he raised in his direct appeal and which he 

raised for the first time in his postconviction proceedings. What Hunter’s Application

does clarify is that on March 26, 2020, the state trial court denied his motion seeking

complete DNA testing and the appointment of counsel and expert testimony. And he 

acknowledges that he did not previously present this issue to the state trial court and 

“would have to seek an appeal to the Colorado Court of Appeals.” Id. at 8. Concerned 

with the “inordinate delay in the state court addressing this issue,” id. at 5, Hunter’s 

Application asks the district court “to find that Mr. Hunter [does] not have to exhaust his 

appeal to the Colorado Court of Appeals because requiring him to do so would cause 

even more delay,” id. at 7. 

A magistrate judge in the District of Colorado ordered Hunter to file an amended 

habeas application, “either a § 2241 application (a challenge to the fact or duration of 

confinement seeking immediate release or a shortened period of confinement) or a § 2254

application (a collateral attack to the validity of a conviction and sentence) that sets forth 

all of his claims for review.” Id. at 13. In addition, the magistrate judge’s order stated that 

“in any amended application, Petitioner must identify the specific federal constitutional 
3

claim he is asserting[,] and he must provide specific factual allegations in support of the 

claim.” Id. Hunter did not file an amended application. 

Following that, the magistrate judge issued a Report and Recommendation (the 

“Report”) advising the district court to dismiss Hunter’s Application without prejudice 

for three reasons. First, Hunter failed to comply with the order to file an amended 

application and therefore failed to prosecute this action. Second, Hunter’s requested relief 

was unavailable under § 2241 because Hunter was challenging the legality of his state 

conviction, not its execution. Moreover, Hunter was asking the court for leave to pursue a

§ 2254 application as relief in his § 2241 application. But “leave to file a § 2254 

application is not relief available via a § 2241 application. Therefore, Petitioner fails to 

present a cognizable request for relief.” Id. at 19. And third, Hunter’s claim of “appellate 

delay” was improper because, among other things, Hunter failed to identify any delay in 

his direct criminal appeal, failed “to allege actual prejudice” to that appeal that was due 

to the delay, and failed to explain how any delay in prior state proceedings excuses the 

exhaustion requirements of his current postconviction appeal, which contains issues 

being raised for the first time. Id. at 19–20. And finally, because the magistrate judge 

discerned that Hunter was seeking to challenge the legality of his prior conviction, the 

judge held that Hunter’s request to be excused from the exhaustion requirements of his

§ 2241 application in order to pursue relief available in a § 2254 application would 

require the court to issue an advisory opinion because there is no § 2254 application 

before the district court. 
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Hunter objected to the Report, claiming that he never received the order to amend 

his habeas corpus application. Crediting Hunter’s objection, the district court adopted the 

magistrate judge’s Report, but only on the second and third grounds. It then issued its 

judgment and later denied Hunter a COA. 

DISCUSSION

When a district court rejects constitutional claims on the merits, “the showing 

required . . . is straightforward: The petitioner must demonstrate that reasonable jurists 

would find the district court’s assessment of the constitutional claims debatable or 

wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 

U.S. 473, 484 (2000)). And when a district court rejects a habeas application on 

procedural grounds, the petitioner must show: (1) “that jurists of reason would find it 

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

right,” and (2) “that jurists of reason would find it debatable whether the district 

court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

In denying Hunter a COA, the district court found that “jurists of reason[ ]

would not find that the petition states a valid claim of the denial of a constitutional 

right nor would jurists of reason find it debatable whether the Court’s procedural 

rulings were correct.” R. at 45. Thus, it held that “no certificate of appealability will 

issue because Plaintiff has not made a substantial showing of the denial of a 

constitutional right.” Id.

Having reviewed Hunter’s filings, the magistrate judge’s Report, the district 

court’s orders, and the entire record under the framework set out in Miller-El, we 
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conclude Hunter is not entitled to a COA. The district court’s resolution of Hunter’s 

petition is not reasonably subject to debate. In denying Hunter’s request for a COA, 

we need not redo the district court’s analysis, which aptly explains why Hunter’s 

application is deficient and why his requested relief is improper.

CONCLUSION

For the reasons set out above, Hunter has not demonstrated that the issues he seeks 

to raise on appeal are deserving of further proceedings, subject to a different resolution 

on appeal, or reasonably debatable among jurists of reason. See Barefoot v. Estelle, 463 

U.S. 880, 893 n.4 (1983). We therefore DENY his request for a COA, DENY his motion 

to proceed on appeal in forma pauperis, and DISMISS this appeal.

Entered for the Court

Gregory A. Phillips

Circuit Judge