* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### NOV 28 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN PAUL HANEY, JR., Petitioner-Appellant,

v. TULSA COUNTY DISTRICT COURT, sued as Tulsa Co. Tulsa Oklahoma State of Oklahoma, Respondent-Appellee. No. 96-5246 (N. District of Oklahoma) (D.C. No. 96-C-781-H)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordere d submitted without oral argument.1 The district court did not deny Haney’s request fora certificate of

appealability on the merits but, instead, denied th e request on the grounds that district courts are without subject matter jurisdic tion to grant certificates of appealability. After the district court’s denial o f the certificate of appealability, this court held that district courts do have the po wer to grant certificates of appealability, at least where detention complained of arises out of process issued by a state court. Houchin v. Zavaras , 107 F.3d 1465, 1468-69 (10th Cir. 1997). -2- Petitioner John P. Haney filed the instant habeas c orpus petition pursuant to 28 U.S.C. § 2241(c)(3) on August 23, 1996. Haney s ought to attack felony charges that were presently pending against him in state district court. Haney contended that the Tulsa Police Department violatedhis constitutional rights during an initial interrogation. He further allege d that he was forced to provide samples of his hair and body fluids pursuant to a c ourt order. The district court dismissed the petition without prejudice on the gro unds that Haney had not exhausted his state remedies. See Coleman v. Thompson , 501 U.S. 722, 731 (1991) (holding that a “state prisoner’s federal pe tition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims”). The district court also denied Haney’s s ubsequent request for a certificate of appealability. 1 See 28 U.S.C. § 2253 (providing that “an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of ari ses out of process issued by a State court” unless the petitioner first obtains a certificate of appealability). Haney now requests a certificate of appealability f rom this court.-3-

A habeas petitioner is entitled to a certificate of appealability only upon a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). This court has held that the Standard for granting a certificate of appealability under the § 2253(c) is the same stand ard set out by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880 (1983). Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part on other grounds by , Lindh v. Murphy , 117 S. Ct. 2059 (1997). Under the Barefoot standard, a certificate of appealability will issue only where the petitioner has demonstrated the issues raised are (1) debatable am ong jurists of reason, (2) a court could resolve the issues differently, or (3) the questions presented are deserving of further proceedings. 463 U.S. at 893 n.4. This court has reviewed the district court’s order, Haney’s brief and application for a certificate of appealability, andthe entire record before us on appeal. In light of that review, we conclude that Haney has failed to make a “substantial showing of the denial of a constitutio nal right” for substantially the reasons set for in the district court’s order datedOctober 8, 1996. In particular, we note that Haney never argues that his claims are indeed exhausted or that he is somehow excused from the exhaustion requirements. In fact, he simply ignores the issue and states in the most general and incomp rehensible terms that the State of Oklahoma is violating his constitutional rights during the process of-4-

investigating him as a criminal suspect. Accordin gly, this court DENIES Haney a certificate of appealability and DISMISSES the appeal.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge