## 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, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. 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 Mex ico (05-2045) and Kansas (05- 3028). They are consolidated for administrative pu rposes. Mr. Sumbry was convicted in the Indiana state court s and is incarcerated in Indiana. He filed an “Instant Uniform Treaty Writ of Habeas Corpus” in the-2-

United States District Court for the District of Ne w Mexico alleging he was illegally arrested in Indiana and the Indiana court s were without jurisdiction. The district court construed the filing as an applicati on under 28 U.S.C. § 2254 and dismissed it without prejudice to his right to purs ue 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 courtdenied his request for a certificate of appealability (COA), b ut permitted him to appeal in forma pauperis (ifp). Mr. Sumbry has renewed his request for COA in thi s Court. Mr. Sumbry also filed a petition for habeas corpus in the United States District Court for the District of Kansas. The dis trict 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 I ndiana. Petitioner must file any federal habeas corpus action relating to an Indiana conviction in the federal courts for the District o f Indiana. (R., Doc. 2 at 1.) It then directed him to show ca use why the petition should not be dismissed for lack of jurisdiction. It also obs erved: [P]etitioner is familiar with the federal courts in Indiana and that he is subject to prior restrictions against filing civ il actions. See Montgomery v. Davis , 362 F.3d 956 (7th Cir. 2004) (upholding sanctions against petitioner and another prisoner w hich include a prohibition against filing a habeas corpus action u nless it challenged a state criminal judgment).-3-

(Id. at 1 n.1.) The court later considered his response, stating: The court also has reviewed petitioner’s response t o the order to show cause and concludes the petitioner has failed to identify any legal grounds under which this court has jurisdicti on to consider petitioner’s challenge to an Indiana state convicti on. As the court explained in its earlier order, petitioner must pur sue habeas corpus relief related to that conviction in the federal co urts for the District of Indiana. (R., Doc. 4 at 1.) It dismissed for lack of jurisd iction and denied COA. The district court also deniedifp status, but did not make the required certificatio n. 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 t he 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 Mexic o, we DENY COA in 05-2045.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge