UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSEPH LEE JONES, Petitioner - Appellant,

v. DOUGLAS COUNTY JAIL, Respondent - Appellee. No. 21-3064 (D.C. No. 5:20- CV-03056-SAC) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MATHESON , BRISCOE , and PHILLIPS , Circuit Judges.

________________ _________________

Petitioner Joseph Lee Jones, a Kansas pret rial detainee appearing pro se, seeks a certificate of appealability (COA) so that he may appeal from th e district court’s denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons outlined below, we deny Jones’ applica tion for COA and dismiss this matter.
I On February 18, 2020, Jones initiate d these proceedings by filing what he described as a petition for writ of habeas corpus pursuant to § 2241. Jones alleged in his

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 21, 2021 Christopher M. Wolpert Clerk of Court2 petition that he was a pretrial detainee conf ined in the Douglas Co unty Jail in Lawrence, Kansas, who had been found incompetent to stand trial and had be en ordered to be committed to the Larned State Hosp ital for evaluation and treatment. 1 The gist of Jones’ petition, as best we can determine, was three-fold. 2 First, Jones alleged that Kansas state officials were not complying with Kansas’ statutory requirements for the evaluation and treatment of incompetent criminal defendants. Second, Jones complained that he wished to represent himself in the ongoing state crim inal proceedings, but was being forced by the state trial court to be represented by an attorney named Dakota Loomis. According to the petition, Loomis had stolen certain docum ents from Jones, thereby creating a conflict of interest between the two men. Third, Jo nes alleged that a hostile environment existed at the Douglas County Jail and he alleged in support that on January 14, 2020, an officer at the jail “inadvertantly [sic ] asked [another] inmate to a ssault” Jones. ROA, Vol. 1 at 12. On the basis of these allegations, Jones sought release from the Douglas County Jail. On May 29, 2020, the district court i ssued a notice and order to show cause directing Jones to show cause why the case should not be dismissed without prejudice due to Jones’ failure to exhaust available state court remedies.

1 According to the reco rd on appeal, all proceedings in Jones’ criminal case were stayed on or about January 24, 2020, so that Jones could be evaluated and potentially treated at the Larned State Hospital. Appa rently due to COVID-19, however, Jones was not transferred to Larned State Ho spital until late 2020 or early 2021.

2 Jones’ petition and other plea dings referred to other incidents, but none of those appear to have been the basis upon which he was seeking release from confinement.3 On June 4, 2020, Jones filed a response to the notice and order to show cause. Id

. at 186. Jones alleged that he could not “utilize local or STATE and Kansas Supreme Courts for his [Kan. Stat. Ann. §] 60-1501 wr its” because “due to COVID-19 they [we]re closed.” Id . Jones in turn alleged that he “ha[ d] no other remedy at law available to him.” Id

. On October 5, 2020, Jones filed a plea ding alleging that he “ha[d] met the requirement” that he “absolutely exhaus t any concievable [sic] state remedy.” Id ., Vol. 2 at 77. Jones attached as an exhibit to this pleading a copy of an order issued by the Supreme Court of Kansas on September 24, 2020. Id . at 79. That order stated that the Supreme Court of Kansas “ha[d] consider ed and dismisse[d] [a] petition for writ of habeas corpus filed [by Jones] on July 10 , 2020, as supplemented by [his] subsequent filings . . . on August 28, 2 020, and August 31, 2020.” Id . The order did not describe the nature of the claims asserted by Jones. On March 15, 2021, the district court issued a memorandum and order denying Jones’ petition, as well as various motions th at he had filed during the pendency of the district court proceedings. In dismissing the petition, the district court noted that Jones had failed to establish “that the issues rais ed” in the habeas petiti on he filed with the Supreme Court of Kansas “were the same as th e issues” he sought to pursue in his federal habeas petition. Id . at 107. The district court also c oncluded that, in any event, Jones had failed to “raise[] a valid claim for violation of his federal constitutional right to a speedy trial.” Id . at 108. The district court explai ned that the delay described by Jones “appear[ed] to fall short of a presumptively pr ejudicial delay,” and that “even if [Jones]4 had shown presumptively prejudic ial delay,” any speedy trial claim he might be asserting “would be foreclosed by the issue of his competency to stand trial” because it was “‘well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial.’” Id . at 109 (quoting Medina v. California , 505 U.S. 437, 439 (1992)). Lastly, the district court concluded that “[a]ny claims” that Jones was asserting “cha llenging the conditions of his confinement d[id] not arise unde r Section 2241” and thus “[we ]re not properly before the Court.” Id . at 110. The district court entered final judgment in the case that same day. Id . at 112. Jones filed a motion to alter or amend j udgment on March 22, 2021. On April 8, 2021, Jones filed a notice of appeal. On April 9, 2021, a two-judge panel of this court issued an order directing a limited remand to the district court to rule on Jones’ motion to alter or amend judgment and to consider whether to issue a COA. On April 14, 2021, the di strict court denied Jones’ motion to alter or amend judg ment and declined to issue a COA. Jones has now filed an application for COA with this court.
II Under the Antiterrorism and Effective Death Penalty Act of 1996, a COA is required to appeal “the final order in a habe as corpus proceeding in which the detention complained of arises out of process issued by a State court.” 28 U.S.C. § 2253(c)(1). We have long held, consistent with the plain la nguage of § 2253(c)(1), “that a state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was5 filed pursuant to § 2254 or § 2241,” so long as the deten tion complained of arises out of process issued by a state court. Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000). A COA may issue only if the petitioner “h as made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, the petitioner must demonstrate “rea sonable jurists could debate whether (or, for that matter, agree that) the petition shou ld have been resolved in a diffe rent manner or . . . the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quotation mark s omitted). Further, where, as here, the district court denies th e petition on procedural grounds , the petitioner must “show[ ], 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 wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). After examining Jones’ application for C OA, we conclude that he has failed to make the requisite showing. As we have no ted, the district court’s order of dismissal rested, in part, on its procedural ruling that Jones had failed to exhaust his state court remedies. Although Jones dis putes that conclusion in his application for COA, he has failed to provide any documentation to estab lish that the claims he presented to the Supreme Court of Kansas were the same issu es raised in his federal habeas petition. Thus, he has failed to establish that jurors of reason would find it debatable whether the district court was correct in its procedural ruling.6 Moreover, we note that the record indica tes that Jones’ state criminal proceedings are ongoing. Jones alleges in his application for COA that in April of this year, he was determined by officials at the Larned State Hospital to be co mpetent to stand trial and has now been returned to the Douglas County Jail for the continuation of his criminal proceedings. Those ongoing state criminal proceedings implicate two well-established principles that preclude Jones from pursuing this federal habeas action. First, “[i]t is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of a trial.” Jones v. Perkins , 245 U.S. 390, 391-92 (1918). Second, the Supreme Court has held that a federal court should not intervene in pe nding state criminal proceedings absent “irrepar able injury” that “is both great and immediate.” Younger v.
Harris , 401 U.S. 37, 46 (1972) (quotation ma rks omitted). Nothin g in the record indicates that Jones has incurred or is about to incur irreparable injury of any kind. Further, nothing in the record causes us to question whether the Kansas state courts can provide Jones with an adequa te forum to litigate any constitu tional claims he may have by way of pretrial proceedings , trial, and, if he is co nvicted, direct appeal and post-conviction proceedings. Therefore, the prop er course is for Jones to first litigate his constitutional claims in the Kansas state courts.7 III Jones’ application for COA and his pending motions for leave to file a supplemental brief are DENIED and this matter is DISMISSED.

Entered for the Court
Mary Beck Briscoe Circuit Judge