57 F. 3d 1080 - Brown v. Le Bruce

This matter is before the court on appellant's motion for leave to proceed on appeal without prepayment of costs and application for a certificate of probable cause. We deny that relief.

Appellant seeks review from an order denying a petition for writ of habeas corpus for failure to exhaust state remedies. Prior to filing in federal court, petitioner attempted to file an original proceeding in the Kansas Supreme Court. The district court concluded although Kansas law facially permits the filing of a petition for writ of habeas corpus as an original matter in the Kansas Supreme Court, the rules of practice of that court provide it will not exercise original jurisdiction unless the petitioner shows the remedy is unavailable in a trial court. Because Mr. Brown did not make that showing, the district court held the Kansas Supreme Court's denial of his habeas application was not an exhaustion of his state remedies, and he still has a remedy available in state court. The district court denied the writ and a certificate of probable cause. We agree with that analysis.

It is apparent on the record appellant can make no rational argument on the law or facts in support of the issues raised on appeal. See 28 U.S.C.1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir.1962). Because we concur in the district court's analysis of Kansas law, we conclude appellant has failed to make a substantial showing of the denial of a federal right necessary for the issuance of a certificate of probable cause under 28 U.S.C. 2252. See Barefoot v. Estelle, 463 U.S. 880 (1983).

It is therefore ORDERED: Appellant's motion for leave to proceed on appeal without prepayment of costs or fees is DENIED; Appellant's application for a certificate of probable cause is DENIED; the appeal is DISMISSED; and the mandate shall issue forthwith.