FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   December 14, 2007
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 RUDY M. ROMERO,
              Petitioner-Appellant,                      No. 07-4112
 v.                                             (D.C. No. 2:05–CV–315–TC)
 STATE OF UTAH; CLINT FRIEL,                              (D. Utah )
 Warden; MICHAEL SIBBETT,
 Chairman of the Utah Board of
 Pardons,
              Respondents-Appellees.


                                      ORDER *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.



      Petitioner Rudy M. Romero was sentenced in state court to five years to life

after pleading guilty to one count of aggravated robbery. The Utah Board of

Pardons and Parole planned to parole Petitioner on July 27, 2004. However, after

receiving DNA information linking Petitioner to a series of rapes committed prior

to his incarceration for which the statute of limitations had passed, the Board

rescinded Petitioner’s scheduled parole and scheduled his next hearing for July 1,

2029. Petitioner then filed this habeas petition challenging the Board’s actions


      *
        This order is not binding precedent, except under the doctrines of law of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.
under 28 U.S.C. § 2241. 1

      Before the district court, Petitioner raised due process, double jeopardy,

cruel and unusual punishment, and ex post facto issues. The district court held

that Petitioner’s claims were precluded because of his failure to exhaust state

remedies. 2 It also denied Petitioner’s application for a certificate of appealability.

Petitioner now seeks a certificate of appealability from this court. 3

      Petitioner must obtain a certificate of appealability to challenge the district

court’s denial of his habeas petition. See Montez v. McKinna, 

, 867

(10th Cir. 2000). Determining whether a certificate of appealability should issue

when a district court has denied a petition on procedural grounds has two

components, one related to the underlying constitutional claims and the other to

the district court’s procedural holding. Slack v. McDaniel, 

, 484–85


      1
       Although Petitioner originally filed under 28 U.S.C. § 2254, the district
court correctly treated the petition as arising under § 2241. See United States v.
Furman, 

, 438 (10th Cir. 1997).
      2
        The district court’s original order incorrectly held that Petitioner was
procedurally barred under Utah’s Post Conviction Remedies Act. Respondents
submitted a motion to alter or amend the order, which the district court granted.
The amended order held that Petitioner should have filed his claim under Utah
Rule of Civil Procedure 65B and explained Petitioner could still file his claim in
state court because “the mere passage of time can never justify continued
imprisonment of one who has been deprived of fundamental rights.” (R. Doc. 30
at 1 (quoting Julian v. State, 

, 254 (Utah 1998).)
      3
        Although Petitioner did not file his notice of appeal within thirty days of
the district court’s order denying his petition, his appeal is timely because the
district court did not enter a separate Rule 58 judgment to trigger the appeal
process. See Fed. R. Civ. P. 58(b)(2)(B).

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(2000). Each component is part of a threshold inquiry, but the court has

discretion “to first resolve procedural issues.” 

“Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” 

      Procedurally, “[a] habeas petitioner is generally required to exhaust state

remedies whether his action is brought under § 2241 or § 2254.” Hamm v. Saffle,

, 1216 (10th Cir. 2002) (internal quotation marks omitted).

      This court cannot address claims that were defaulted in state court
      on independent and adequate state procedural grounds unless
      [Petitioner] can demonstrate cause for the default and actual
      prejudice as a result of the alleged violation of federal law, or
      demonstrate that failure to consider the claims will result in a
      fundamental miscarriage of justice.

marks omitted).

      Nothing in Petitioner’s briefs satisfies our standard for excusing the

procedural state exhaustion requirement on his claims. Petitioner has shown

neither cause for his failure to file in state court nor that a “fundamental

miscarriage of justice” will occur if this court refuses to hear his petition.

Petitioner only claims that arguing his case in Utah would be “useless.” (Petr.’s

Application for Certificate of Appealability at 4.)

      We have carefully reviewed the parties’ briefs, the district court’s


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disposition, and the record on appeal. We conclude that no reasonable jurist

would determine that the district court erred in its procedural ruling. For

substantially the reasons set forth in the district court’s orders, we DENY

Petitioner’s request for a certificate of appealability and DISMISS the appeal.

We GRANT Petitioner’s request to proceed in forma pauperis.



                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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