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 se, 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 Coram Nobis” challenging his

conviction. We deny Mr. Doshier’s request for a COA, 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 appeal his conviction or seek relief
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under Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080-

1089. Instead, on December 27, 2001, Mr. Doshier filed 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 Court of Criminal Appeals

(OCCA), filing a “Habeas Corpus Petition” challenging 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 corpus is not an authorization to

bypass the statutory appeal process,” and ruling that 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 was denied a timely appeal

through no fault of his own, he should file an application for post-conviction

relief in the District Court, seeking an out of time appeal.” Id. at 1-2 n.2. 

Rather than seek an appeal out of time under Oklahoma’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 assistance of counsel, and (4) the
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use of a purportedly invalid search warrant. Also, he requested an evidentiary

hearing. On October 22, 2002, the district court dismissed the application without

prejudice for failure to exhaust state remedies. This request for a COA followed. 

A COA can issue only if “the applicant has made a substantial 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 procedural 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 constitutional 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 consideration 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 under § 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 district court’s order, and

the record on appeal, we conclude that the district court’s determination that

Mr. Doshier’s § 2254 application should be dismissed for failure to exhaust state
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remedies is not reasonably debatable. An applicant for 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 satisfied

“once [a] federal claim has been fairly presented to the state courts.” Castille v.

Peoples, 489 U.S. 346, 351 (1989) (internal quotation marks omitted; bracket in

original). In Oklahoma, habeas corpus is a limited remedy 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 habeas corpus is limited to a

determination of whether the trial court had jurisdiction of the person, subject

matter, and authority under law to pronounce the judgment and sentence

imposed.”) Under these circumstances, the filing of Mr. Doshier’s state habeas

petition is not a “fair presentation” to the OCCA sufficient to satisfy the

exhaustion requirement. See Castille, 489 U.S. at 351 (a petitioner who invokes a

discretionary and limited state remedy does not fairly 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 Mr. Doshier apparently still

has state remedies available to him, as the OCCA advised him that he could seek

an out-of-time appeal through an application for post-conviction relief in state

district court. Therefore, for substantially the same reasons set forth in the
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district court’s October 22, 2002 order, we DENY Mr. Doshier’s request for a

COA. 

Mr. Doshier has also challenged his conviction by filing 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