FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                         September 9, 2011
                       UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                            Clerk of Court
                              FOR THE TENTH CIRCUIT


 DEMARCO JAMAAL WHITE,

              Petitioner - Appellant,
                                                            No. 11-1245
 v.                                               (D. Ct. No. 10-CV-00282-MSK)
                                                             (D. Colo.)
 ANGEL MEDINA, Warden, L.D.F. and
 THE ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.



                              ORDER REMANDING CASE



Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



       The United States District Court for the District of Colorado entered an order on

May 11, 2011, denying the 28 U.S.C. § 2254 habeas application of DeMarco Jamaal

White, a person incarcerated in the State of Colorado based on state murder convictions.

A judgment was entered that same day and Mr. White filed a timely notice of appeal,

thereby initiating this proceeding.

       In addition to denying substantive relief, the district court denied a certificate of

appealability. See 28 U.S.C. § 2253(c). In due course, Mr. White filed with this court a

combined opening brief and application for a certificate of appealability.
       In its dispositive order, the district court stated that review of the eleven issues

raised by Mr. White was necessarily indirect because, according to the court, it did not

have the state court trial record available. See Doc. 22, Opinion and Order Denying

Petition, pp. 4-5, n.1. The court made the determination nevertheless to “proceed in the

absence of any trial record.” 

However, the district court did have available the

state court trial record. It was filed with the district court on April 8, 2011, and consists

of “2 volumes of pleadings, 5 envelopes, and 21 volumes of transcripts.” See Doc. 21. In

addition to the entry on the docket, this court has further confirmed delivery of the state

court trial record to the federal district court through the return receipt filed with the 2nd

Judicial Denver District Court, No. 02CR4174, People v. White.

       No appeal may be taken from a final order disposing of a § 2254 petition unless

the petitioner first obtains a certificate of appealability from this court. See 28 U.S.C.

§ 2253(c)(1)(A). A petitioner is entitled to a certificate of appealability if he can make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He

can meet this burden by demonstrating “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 

, 484 (2000) (quotations omitted). Mr. White has

requested a certificate of appealability from this court but the court cannot properly

evaluate his request without knowing whether the district court’s order denying his

habeas application would have been the same had its review been based on the

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voluminous state court trial record that was available.

       Accordingly, the court remands this case to the United States District Court for

the District of Colorado with instructions to vacate its judgment and to review again the

claims of Mr. White, with reference to the state court trial record. Mr. White’s motion

seeking leave to proceed before this court in forma pauperis is granted. In light of this

disposition, the court need not and has not considered whether any of the issues raised by

Mr. White in his combined brief and application for a certificate of appealability

demonstrate a substantial showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c)(2).

       There having been no judgment or substantive disposition by this court, no

mandate will issue. Rather, this court fully relinquishes jurisdiction back to the district

court effective with the entry of this dispositive order. This remand is without prejudice

to the right of Mr. White to file a timely new notice of appeal if the district court again

denies the relief he has requested in his habeas application.

       The clerk of this court shall immediately transfer back the state court trial record

that was transmitted from the federal district court to this court on June 21, 2011.

       Appeal dismissed.

                                           ENTERED FOR THE COURT




                                           Douglas E. Cressler
                                           Chief Deputy Clerk

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