F IL E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       January 26, 2007
                                 T E N T H C IR C U IT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court



 K EV IN B. D IC KIN SO N ,

       Petitioner-A ppellant ,

       v.                                                 No. 06-2140
                                                        ( New M exico )
HARRY TIPTON, Director, Bernalillo             (D.C. No. CIV-05-1317 BB /RLP )
County M etropolitan D etention Center;
A TTO RNEY G EN ER AL FO R THE
STA TE OF N EW M EX IC O,

       Respondents-Appellee s.



                                      ORDER


Before M U R PH Y , SE Y M O U R , and M cC O N N E L L , Circuit Judges.


      On Decem ber 19, 2005, Kevin B. Dickinson filed an application for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States D istrict Court

for the D istrict of New M exico. Dickinson, who has been charged w ith first

degree murder in New M exico, alleged ineffective assistance of counsel and

violations of his due process rights and his right to a speedy trial. Respondents

filed a m otion to dismiss Dickinson’s application, arguing his claims were

unexhausted because he failed to present them to the New M exico state court.

See Coleman v. Thompson, 

, 731 (1991).
      The district court characterized Dickinson’s application as properly brought

pursuant to 28 U.S.C. § 2241 because he is a pretrial detainee. See Montez v.

M cKinna, 

, 870 (10th Cir. 2000). The court then granted

Respondents’ m otion and dismissed the application without prejudice for failure

to exhaust state remedies. Dickinson does not challenge the characterization of

his application as a § 2241 proceeding but seeks to appeal the district court’s

dismissal of his application. Dickinson cannot appeal the district court’s

dism issal of his application unless he first obtains a certificate of appealability

(“COA”). See 28 U.S.C. § 2253(c). To be entitled to a COA, Dickinson m ust

show “that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. M cDaniel, 

, 484-85 (2000)

(holding that when a district court dism isses a habeas petition on procedural

grounds, a petitioner is entitled to a COA only if he shows both that reasonable

jurists w ould find it debatable w hether he had stated a valid constitutional claim

and debatable whether the district court’s procedural ruling was correct).

      Dickinson has provided documentation he attempted to file a mandamus

petition with the New M exico Suprem e Court but the clerk refused to accept it.

In the m andam us petition, Dickinson sought an injunction prohibiting the state

trial judge from determ ining his competency to stand trial until the judge ruled on

an outstanding m otion. In an amendment to the mandamus petition, Dickinson

raised many of the claim s asserted in his § 2241 application. The clerk of the

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New M exico Supreme Court refused to file the mandamus petition, advising

Dickinson “[t]he requested relief is not appropriate for an extraordinary writ, but

rather on appeal after the final judgm ent is issued.” H aving reviewed Dickinson’s

m andam us petition and the am endm ent thereto, we conclude it did not fairly

present the claim s Dickinson seeks to raise in his § 2241 application. See

Castille v. Peoples, 

, 351 (1989) (“[W ]here the claim has been

presented for the first and only time in a procedural context in which its m erits

will not be considered unless there are special and important reasons therefor,

[r]aising the claim in such a fashion does not, for the relevant purpose, constitute

fair presentation.” (citation and quotations om itted)). Thus, the state court’s

refusal to file Dickinson’s mandam us petition does not affect the district court’s

conclusion Dickinson has failed to exhaust his state rem edies.

      Our review of the record demonstrates the district court’s dism issal of

Dickinson’s § 2241 application is not deserving of further proceedings or subject

to a different resolution on appeal. Accordingly, this court denies Dickinson’s

application for a certificate of appealability and dism isses this appeal.

Dickinson’s m otion to proceed in forma pauperis on appeal is granted.

                                        Entered for the Court
                                        ELISA BETH A. SH UM AKER, Clerk


                                        By
                                                Deputy Clerk


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