FILED

United States Court of Appeals

Tenth Circuit

November 15, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULIAN L. RUSSELL,

Petitioner - Appellant, No. 11-3217

v. D. Kansas

STATE OF KANSAS,

Respondent - Appellee.

(D.C. No. 5:11-CV-03117-SAC)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.

Julian L. Russell, proceeding pro se, is before this court seeking a

certificate of appealability (“COA”) which he must obtain before he can appeal

the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be taken from the

denial of a § 2254 habeas petition unless the petitioner first obtains a COA). 

Russell has not made a substantial showing of the denial of a constitutional right. 

He, therefore, is not entitled to a COA and his appeal is dismissed. See id.

§ 2253(c)(2). 

In 2009, Russell was convicted of attempted aggravated indecent

solicitation of a child and sentenced to twenty-four months’ probation with an
underlying sentence of twenty-four months’ incarceration.1

 Russell was also

sentenced to lifetime postrelease supervision. See Kan. Stat. Ann. § 22-

3717(d)(1)(G) (providing that an individual convicted of a sexually violent crime

committed on or after July 1, 2006, “shall be released to a mandatory period of

postrelease supervision for the duration of the person’s natural life”). In his

§ 2254 petition,2

 Russell challenged the imposition of lifetime postrelease

supervision. 

The district court dismissed Russell’s § 2254 petition without prejudice for

failure to exhaust state court remedies.3

 Although Russell filed a pro se motion to

correct illegal sentence with the Kansas sentencing court, he did not appeal the

denial of that motion or present his claim to either the Kansas Court of Appeals or

the Kansas Supreme Court. A state prisoner seeking federal habeas review “must

give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.” 

1

Russell’s probation was revoked for undisclosed reasons and he was

ordered to serve the underlying sentence. 

2

Russell filed a civil rights complaint pursuant to 42 U.S.C. § 1983 which

the district court properly construed as a 28 U.S.C. § 2254 petition. Russell does

not challenge the district court’s construction of his pleading. 

3

The district court noted that Russell’s claim, as currently presented, raised

only a matter of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 

Properly presented, however, the claim could be construed as a due process

challenge to his sentence. See Vasquez v. Cooper, 862 F.2d 250, 255 (10th Cir.

1988). The claim could also be construed as an Eighth Amendment challenge. 

See Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999). 

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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534-35 (10th Cir. 1994). 

To be entitled to a COA, Russell must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Russell has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El, 537 U.S. at 338. Although Russell need not demonstrate his

appeal will succeed to be entitled to a COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted). 

This court has reviewed Russell’s appellate brief and application for COA,

the district court’s order, and the entire record on appeal pursuant to the

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framework set out by the Supreme Court in Miller-El and concludes Russell is

not entitled to a COA. The district court’s resolution of Russell’s habeas

application is not reasonably subject to debate and his claims are not adequate to

deserve further proceedings. Accordingly, Russell has not “made a substantial

showing of the denial of a constitutional right” and is not entitled to a COA. 28

U.S.C. § 2253(c)(2). This court denies Russell’s request for a COA and

dismisses this appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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