UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANTHONY LEROY DAVIS, 

 Petitioner - Appellant, 

v. 

DAN SCHNURR, 

 Respondent - Appellee. 

No. 17-3163 

(D.C. No. 5:17-CV-03087-SAC) 

(D. Kan.) 

_________________________________ 

ORDER DENYING A CERTIFICATE OF APPEALABILITY

_________________________________ 

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges. 

_________________________________ 

On May 19, 2017, Applicant Anthony Davis filed for relief in the United States 

District Court for the District of Kansas on a form for applications under 28 U.S.C. 

§ 2254. He asserted a violation of his “right to procedural due process” because he has 

purportedly “satisfied” his “computed sentences” and so has a “right to be released.” R., 

Vol. 1 at 9. As this is a challenge to the calculation of his sentence, the district court construed the application as one under 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 

862, 865 (10th Cir. 2000). The court then dismissed it without prejudice because Applicant had not shown that he had exhausted state-court remedies. Applicant filed a notice 

of appeal. To appeal, he must obtain a certificate of appealability (COA). See id. at 867. 

The district court refused to issue a COA, so Applicant has applied to this court for one. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 13, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

“When a district court dismisses a petition on procedural grounds without reaching 

the prisoner’s underlying constitutional claim, a COA cannot issue unless the petitioner 

shows both (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.” Frost v. 

Pryor, 749 F.3d 1212, 1230 (10th Cir. 2014) (internal quotation marks omitted). Even 

assuming that Applicant could meet this test’s first prong, he has not shown that reasonable jurists could debate the second. 

Before seeking federal habeas relief, a state prisoner proceeding under § 2241 

must exhaust available state-court remedies. See Magar v. Parker, 490 F.3d 816, 818 

(10th Cir. 2007). This is to “give the state courts a full and fair opportunity to resolve 

federal constitutional claims before those claims are presented to the federal courts.” 

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “[A] state prisoner must give state 

courts one full opportunity to resolve any constitutional issues by invoking one complete 

round of the State’s established appellate review process.” Frost, 749 F.3d at 1231 (internal quotation marks omitted). A complete round includes seeking discretionary review 

in the State’s highest court. See id. 

It is Applicant’s burden to show exhaustion of state-court remedies. See Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). He has not done so. Although his 

brief to this court mentions a pending matter in Kansas state court, and apparently he recently received a decision from the Kansas Court of Appeals, he has made no showing 

that he has pursued the claim before us through Kansas courts to the state supreme court. 
3 

All reasonable jurists would agree that Applicant has not exhausted his state-court remedies. 

We DENY Applicant’s COA request and dismiss this appeal. 

Entered for the Court 

Harris L Hartz 

Circuit Judge