*After examining appellant’s brief and the 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) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, or collateral estoppel. The court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 8 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES BENJAMIN WHITE,

Petitioner - Appellant,

v.

BOULDER COUNTY, CO;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

No. 02-1130

(D.C. No. 01-Z-2377)

(D. Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.

James B. White, a pro se state prisoner, brought this petition under 28

U.S.C. § 2254 raising three grounds for relief. He asserts the Colorado district

court was without jurisdiction to revoke his deferred sentence, that he was

illegally extradited from Utah to Colorado, and that the evidence underlying his
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conviction was the result of an unlawful arrest. The district court observed that

Mr. White’s petition indicated he had separate proceedings on each of the first

two claims still pending in the state courts. Accordingly the court dismissed

those claims without prejudice for failure to exhaust. The court abstained from

exercising jurisdiction over the third claim under Younger v. Harris, 401 U.S. 37,

45 (1971), which prohibits federal courts from interfering with ongoing state

criminal proceedings absent extraordinary circumstances the court found Mr.

White had not shown. 

Mr. White thereafter filed a motion for reconsideration, which the court

construed as one pursuant to Fed. R. Civ. P. 59(e), alleging that he had exhausted

his claim challenging his extradition. The court denied the motion, holding that

when, as here, a prisoner has been returned to the demanding state, he may no

longer seek habeas relief challenging his confinement on grounds arising in the

asylum state. The court denied Mr. White’s request to proceed on appeal in forma

pauperis and denied his application for a certificate of appealability.

Mr. White appeals, raising only the district court’s disposition of his

extradition claim. He contends he was illegally extradited from Utah to Colorado

because he was not allowed court appearances in Utah before being extradited. 

Mr. White filed a supplemental pleading with this court asserting that he has

exhausted his state court remedies. As best we can tell from the original case
1

 It thus appears that Mr. White’s challenge to his guilty plea is still

pending in state court.

-3-

number shown on the attached Colorado Supreme Court order denying the petition

for writ of mandamus, it concerns Mr. White’s challenge to his extradition.1

 We

therefore address Mr. White’s extradition claim.

Before a fugitive in custody is extradited to the demanding

state, he may challenge the authority of the asylum state by seeking a

federal writ of habeas corpus. Yet “once the prisoner has been

returned to the demanding state, the writ of habeas corpus is no

longer available to challenge his confinement upon grounds arising in

the asylum state.”

Gee v. State of Kansas, 912 F.2d 414, 416 (10th Cir. 1990) (citations omitted)

(quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952)). In this case, Mr. White

claims he was extradited before he could challenge the extradition procedures of

the asylum state, a claim which he may no longer pursue via a request for federal

habeas relief. See id.; see also Remeta v. Singletary, 85 F.3d 513, 518-19 (11th

Cir. 1996) (failure of asylum state to provide petitioner pre-extradition hearing

did not deprive demanding state of jurisdiction to try petitioner on criminal

charges); Eckert v. Tansy, 936 F.2d 444, 450 (9th Cir. 1991) (federal habeas relief

cannot be granted “on the ground of illegal extradition”); Shack v. Attorney

General, 776 F.2d 1170, 1172 (3d Cir. 1985) (deprivation of right to preextradition hearing did not render petitioner’s subsequent confinement illegal or
-4-

prevent state from prosecuting him). Accordingly, Mr. White’s claim for federal

habeas relief on this issue is plainly without merit.

To be entitled to a COA, a petitioner must make a substantial showing of

the denial of a constitutional right, a demonstration that requires a showing that

the matter was debatable among reasonable jurists or that the issue presented

required further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). As discussed above, Mr. White has not made such a showing. We

therefore deny his request for a COA and his motion to proceed in forma

pauperis, and dismiss his appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge