F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                           June 5, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court




DO RRELL R. CO ULTH RU ST,

          Petitioner-A ppellant,                         No. 07-2038
v.                                            (D.C. No. CIV-06-984-M CA /AC T)
                                                      (D. New M exico)
W ALT W ELLS,

          Respondents-Appellees.



                              OR DER AND JUDGM ENT *


Before LUC ER O, HA RTZ, and GORSUCH, Circuit Judges.



       Although it is difficult to discern from the scant materials he has provided,

construing those materials as liberally as possible, see Andrews v. Heaton, 

, 1076 (10th Cir. 2007), Dorrell Coulthrust indicates that he was twice

convicted of possession with intent to distribute cocaine, first in 1990 and then

again in 1991; after his second conviction, apparently in federal court,

M r. Coulthrust received a sentence of 240 months’ imprisonment which he is

currently serving in a New M exico facility. In separate proceedings, an


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
immigration judge in April 2003 ordered M r. Coulthrust deported to Barbados at

the conclusion of his prison term. M r. Coulthrust sought to overturn the

immigration judge’s order but his efforts to date seem to have proven

unsuccessful. See Coulthrust v. Attorney General, 177 Fed. Appx. 234 (3d Cir.)

(unpub.), cert. denied, 

(2006).

       Having failed to defeat the immigration judge’s deportation order through

conventional channels, and shortly after receiving the Third Circuit’s decision on

his immigration appeal, M r. Coulthrust filed this pro se habeas petition in federal

court in New M exico pursuant to 28 U.S.C. § 2241. As best w e can tell, this

petition also purports to challenge the right asserted by the Department of

Homeland Security (“DHS”) to remove him after he finishes his prison term. The

magistrate judge hearing the petition recommended dismissing it for lack of

jurisdiction. The magistrate judge did so on the basis of M r. Coulthrust’s twin

admissions in his trial court pleadings – namely, that he has been convicted of an

aggravated felony and is not a citizen or national of the United States – as well as

the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, which provides

in pertinent part that

       [n]otwithstanding any other provision of law (statutory or
       nonstatutory), including section 2241 of Title 28, or any other habeas
       corpus provision, and sections 1361 and 1651 of such title, and except
       as provided in subparagraph (D ), no court shall have jurisdiction to
       review any final order of removal against an alien who is removable
       by reason of having committed a criminal offense covered in section
       1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any

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      offense covered by section 1227(a)(2)(A)(ii) of this title for which
      both predicate offenses are, without regard to their date of
      commission, otherwise covered by section 1227(a)(2)(A )(i) of this
      title.

8 U.S.C. § 1252(a)(2)(C) (emphases added); see M ag. J. Proposed Findings and

Recommend Disposition of Dec. 6, 2006, at 2-3. The Real ID Act made petitions

for review of decisions of the Board of Immigration Appeals the “sole and

exclusive means” for contesting most removal orders in federal court. 8 U.S.C.

§ 1252(a)(5).

      The district court rejected M r. Coulthrust’s objections to the magistrate

judge’s recommendation and dismissed M r. Coulthrust’s habeas petition for lack

of jurisdiction on December 28, 2006. M r. Coulthrust thereafter requested

permission to proceed on appeal in form a pauperis, which the district court denied

on M arch 2, 2007, on the ground that M r. Coulthrust’s proposed appeal presented

no reasoned argument in law or fact.

      In his papers before us, M r. Coulthrust appears to argue that removal would

be inappropriate because he “ow[e]s permanent allegiance to N ew York state[,] a

Republic.” Pet’r’s Resp. to M ag. J. Findings and Recommendations at 3. On this

basis, M r. Coulthrust also appears to assert he is not an alien, as that term is

defined in 8 U.S.C. § 1101(a)(3), and therefore his habeas petition is not subject to

the Real ID Act’s jurisdictional restrictions contained in 8 U.S.C. § 1252(a)(2)(C).

See Appellant’s Br. at 4.



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      M r. Coulthrust’s arguments falter on many fronts. 1 By way of example, he

appears to believe that New York state can, and has, established separate

procedures for the naturalization of new citizens; however, the United States

Constitution grants this authority exclusively to the federal government. See U.S.

Const. Art. I § 8 (“Congress shall have Power . . . [t]o establish a uniform Rule of

Naturalization . . . .”). Further, as the magistrate judge observed, M r. Coulthrust

repeatedly concedes that he is “a citizen of a foreign state,” Pet’r’s Habeas

Petition at 1, a native of Barbados, 

and “NOT A FED ERAL U .S.

CITIZEN i.e. 14th Amendment Citizen,” Pet’r’s Resp. to M ag. J. Findings and

Recommendations at 4. Accordingly, he is, by his own admission, an “alien”

subject to the jurisdictional restrictions contained in Section 1252(a)(2)(C). See

8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or

national of the United States.”). Even assuming M r. Coulthrust had presented a

colorable claim that he is a citizen or national of the United States, moreover, any

challenge to a removal order generally should be filed in connection with his

immigration proceedings, 8 U.S.C. § 1252(a)(5), and should be filed “with the



      1
          Because he claims to be a federal prisoner challenging a federal order
under Section 2241, M r. Coulthrust does not need to obtain a certificate of
appealability prior to obtaining an appellate disposition on the merits of his
petition. Aguilera v. Kirkpatrick, 

, 1292 (10th Cir. 2001) (when
petitioner seeks review of deportation order under Section 2241, a court “need not
. . . grant a certificate of appealability as is required in some habeas cases”).



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court of appeals for the judicial circuit in which the immigration judge completed

the proceedings,” 8 U.S.C. § 1252(b)(2). At least from the limited set of

materials provided by M r. Coulthrust, it appears the appropriate circuit to hear

such a challenge would be the Third Circuit, not our own.

      Accordingly, we dismiss M r. Coulthrust’s petition for lack of jurisdiction

and, concurring with the district court’s assessment that he lacked a reasoned

argument to pursue on appeal and therefore that his appeal was not taken in good

faith, see 28 U.S.C. § 1915(a)(3), we deny his request for leave to proceed before

this court in form a pauperis.

                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge




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