F I L E D

United States Court of Appeals

Tenth Circuit

June 2, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRIANTE J. SUMBRY,

Petitioner - Appellant,

v.

CECIL DAVIS,

Respondent - Appellee.

Nos. 05-3028 & 05-2045

D. Kansas 

(D.Ct. No. 04-CV-3496-SAC)

and 

D. New Mexico

(D.Ct. No. CIV-04-1437 JB/ACT)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See FED. R. APP. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is

therefore ordered submitted without oral argument.

Mr. Sumbry is a promiscuous as well as a frivolous filer. These pro se

appeals are from federal district courts in New Mexico (05-2045) and Kansas (05-

3028). They are consolidated for administrative purposes.

Mr. Sumbry was convicted in the Indiana state courts and is incarcerated in

Indiana. He filed an “Instant Uniform Treaty Writ of Habeas Corpus” in the
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United States District Court for the District of New Mexico alleging he was

illegally arrested in Indiana and the Indiana courts were without jurisdiction. The

district court construed the filing as an application under 28 U.S.C. § 2254 and

dismissed it without prejudice to his right to pursue his claims in an appropriate

forum. It observed that while his “application may not be ‘clearly doomed,’ [] he

presents no factual basis for the relief he seeks.” (R., Vol. I, Doc. 5, citing

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000)). The court denied his

request for a certificate of appealability (COA), but permitted him to appeal in

forma pauperis (ifp). Mr. Sumbry has renewed his request for COA in this Court. 

Mr. Sumbry also filed a petition for habeas corpus in the United States

District Court for the District of Kansas. The district court noted the following:

The petition reflects that petitioner was arrested in June 1998 by

Gary [Indiana] police. Neither the petition nor attachments suggest

any basis for the exercise of jurisdiction by this court, as it appears

that all relevant events occurred in the State of Indiana. Petitioner

must file any federal habeas corpus action relating to an Indiana

conviction in the federal courts for the District of Indiana.

(R., Doc. 2 at 1.) It then directed him to show cause why the petition should not

be dismissed for lack of jurisdiction. It also observed:

[P]etitioner is familiar with the federal courts in Indiana and that he

is subject to prior restrictions against filing civil actions. See

Montgomery v. Davis, 362 F.3d 956 (7th Cir. 2004) (upholding

sanctions against petitioner and another prisoner which include a

prohibition against filing a habeas corpus action unless it challenged

a state criminal judgment).
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(Id. at 1 n.1.)

The court later considered his response, stating:

The court also has reviewed petitioner’s response to the order to

show cause and concludes the petitioner has failed to identify any

legal grounds under which this court has jurisdiction to consider

petitioner’s challenge to an Indiana state conviction. As the court

explained in its earlier order, petitioner must pursue habeas corpus

relief related to that conviction in the federal courts for the District

of Indiana.

(R., Doc. 4 at 1.) It dismissed for lack of jurisdiction and denied COA. The

district court also denied ifp status, but did not make the required certification. 

Mr. Sumbry has renewed his request for COA in this Court.

We GRANT Mr. Sumbry’s motion to proceed ifp but DENY a COA in 05-

3028 for substantially the same reasons stated by the United States District Court

for the District of Kansas. For substantially the same reasons stated by the United

States District Court for the District of New Mexico, we DENY COA in 05-2045.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge