## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 15 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY JOE DOSHIER,

Petitioner-Appellant, No. 02-7151
v. (D.C. No. CIV-02-161-S) STATE OF OKLAHOMA,

Respondent-Appellee. (E.D. Oklahoma)

ORDER

Before EBEL , HENRY , and HARTZ , Circuit Judges.
Larry Joe Doshier, a state prisoner appearing pro s e, seeks a certificate of appealability (COA) that would allow him to appeal the district court’s order dismissing his application for a writ of habeas corpus under 28 U.S.C. § 2254 for failure to exhaust state remedies. See 28 U.S.C. § 2253(c)(1)(A). He has also filed with this court a “Petition for Writ of CoramNobis” challenging his conviction. We deny Mr. Doshier’s request for a CO A, deny his petition for a writ of error coram nobis, and dismiss the appeal. On December 8, 2000, Mr. Doshier pleaded guilty to one count of manufacturing a controlled dangerous substance and was sentenced to 20 years’ imprisonment. Apparently, he did not directly appe al his conviction or seek relief-2-

under Oklahoma’s Post-Conviction Procedure Act, Okl a. Stat. tit. 22, §§ 1080- 1089. Instead, on December 27, 2001, Mr. Doshier f iled in the District Court of Seminole County, Oklahoma, a petition for a writ of habeas corpus (which is a different remedial process from an application for relief under Oklahoma’s postconviction statute, see Okla. Stat. tit. 22, Ch. 18, App. R. 10.6(C)(1)). His petition was denied in a one-paragraph order dated February 13, 2002. Mr. Doshier appealed that denial to the Oklahoma Co urt of Criminal Appeals (OCCA), filing a “Habeas Corpus Petition” challengi ng his conviction on a number of grounds. The OCCA declined jurisdiction over the petition on March 13, 2002, noting that “[t]he writ of habeas c orpus is not an authorization to bypass the statutory appeal process,” and ruling th at Mr. Doshier “ha[d] not properly presented th[e] matter for consideration.” R., Tab 1, Ex. 2, at 1. Mr. Doshier was advised that if he “believe[d] he w as denied a timely appeal through no fault of his own, he should file an appl ication for post-conviction relief in the District Court, seeking an out of tim e appeal.” Id. at 1-2 n.2. Rather than seek an appeal out of time under Oklaho ma’s post-conviction statute, Mr. Doshier filed a § 2254 habeas corpus application in federal court. In that application, as in his habeas petition to the OCCA, Mr. Doshier appears to challenge his conviction on the following grounds: (1) entrapment, (2) outrageous government conduct, (3) ineffective assi stance of counsel, and (4) the-3-

use of a purportedly invalid search warrant. Also, he requested an evidentiary hearing. On October 22, 2002, the district court d ismissed the application without prejudice for failure to exhaust state remedies. T his request for a COA followed. A COA can issue only if “the applicant has made a s ubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court has denied the application on proced ural grounds without reaching the underlying constitutional claims, a COA should issue if the applicant demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutio nal right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We recognize that in examining whether the district court’s “resolution was debatable amongst jurists of reason,” we should not undertake a “full conside ration of the factual or legal bases adduced in support of the claims.” Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003). Rather, “[t]he COA determination unde r § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. (emphasis added). After consideration of Mr. Doshier’s brief, the dis trict court’s order, and the record on appeal, we conclude that the districtcourt’s determination that Mr. Doshier’s § 2254 application should be dismissed for failure t o exhaust state-4-

remedies is not reasonably debatable. An applicantfor a writ of habeas corpus under § 2254 must show that he has exhausted the remedies available in the courts of the state. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is sati sfied “once [a] federal claim has been fairly presented to the state courts.” Castille v. Peoples , 489 U.S. 346, 351 (1989) (internal quotation mark s omitted; bracket in original). In Oklahoma, habeas corpus is a limitedremedy and may not be used to bypass the statutory appeals process. See Okla. Stat. tit. 22, Ch. 18, App. R. 10.6(C)(1); Smith v. Oklahoma , 546 P.2d 1351, 1354 (Okla. Crim. App. 1976) (“We have consistently held that the scope of habea s corpus is limited to a determination of whether the trial court had jurisd iction of the person, subject matter, and authority under law to pronounce the ju dgment and sentence imposed.”) Under these circumstances, the filing o f Mr. Doshier’s state habeas petition is not a “fair presentation” to the OCCA s ufficient to satisfy the exhaustion requirement. See Castille , 489 U.S. at 351 (a petitioner who invokes a discretionary and limited state remedy does not fai rly present his claims and therefore does not exhaust state remedies); Parkhurst v. Shillinger , 128 F.3d 1366, 1369 (10th Cir. 1997) (same). We note that M r. Doshier apparently still has state remedies available to him, as the OCCA ad vised him that he could seek an out-of-time appeal through an application for po st-conviction relief in state district court. Therefore, for substantially the s ame reasons set forth in the-5-

district court’s October 22, 2002 order, we DENY Mr. Doshier’s request for a COA. Mr. Doshier has also challenged his conviction by f iling a “Petition for Writ of Coram Nobis.” That petition is DENIED

. See United States v. Torres , 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis.”). The appeal is DISMISSED

. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge