Feaster v. Poppell, (10th Cir. 2003)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CLIFFORD FEASTER,

Petitioner-Appellant,

v.

DAYTON J. POPPELL, Warden;

DREW EDMONDSON; STATE OF

OKLAHOMA; THE OKLAHOMA

DEPARTMENT OF CORRECTIONS;

THE ATTORNEY GENERAL OF

THE STATE OF OKLAHOMA,

Respondents-Appellees.

No.
name="1">03-6078

ORDER

Before HENRY, BRISCOE and

LUCERO, Circuit Judges.

Clifford Feaster, a state prisoner appearing pro se through a "next friend,"

Rudy Jaquez, requests a stay or injunction pending the appeal of the denial of his

federal habeas corpus petition. Reading his pleadings liberally, Mr. Feaster

seems to request (1) a "full and fair hearing" on probated matters he challenged in

Oklahoma state court, (2) an order requiring respondents to move him to a

hospital and to give him a competency hearing, and (3) appointment of counsel

for his state probate matters. See Pet. for Stay at 1.

Mr. Feaster's federal habeas petition was dismissed without prejudice for

lack of exhaustion and for failure to state a cognizable habeas claim. The district

court determined that (1) Mr. Feaster had not exhausted his state remedies

regarding the challenges to his convictions because permission to file a direct

appeal had been recently granted out of time in state court and the case was

remanded for appointment of counsel; (2) his claims seeking placement in a

hospital were not cognizable under the habeas statutes and would have to be

administratively exhausted before he could file a complaint pursuant to 42 U.S.C. § 1983; and (3) his claims regarding the state-court probate proceeding also were

not proper habeas claims.

Mr. Feaster filed a notice of appeal. On April 7, 2003, the district court

denied his request for a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (providing that appeal may not be taken unless a COA is first

granted). The requirement that a COA be granted before we may take the appeal

is jurisdictional. See Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir. 2000).

And, we must have jurisdiction over a matter before we may exercise our

equitable powers to grant injunctive relief. See Knopp v. Magaw, 9 F.3d 1478,

1479-80 (10th Cir. 1993) ("subject matter jurisdiction must attach before the court

may exercise its equitable powers"); Desktop Direct, Inc. v. Digital Equip. Corp.,

993 F.2d 755, 756-57 (10th Cir. 1993) (determining appellate jurisdiction before

considering merits of petition for stay). Thus, we must first determine whether

Mr. Feaster has "made a substantial showing of the denial of a constitutional

right," 28 U.S.C. § 2253(c)(2), in his underlying habeas petition before we

consider the merits of the petition for injunctive relief. We conclude that he

cannot make such a showing for substantially the same reasons stated in the

magistrate judge's report and recommendation issued February 6, 2003, and

adopted by the district court in its February 26, 2003, order.

Mr. Feaster is given leave to proceed before this court in forma pauperis.

We DENY a COA, DISMISS the appeal, and DENY the petition for injunctive

relief and all other outstanding motions as moot.

Entered for the Court

PATRICK FISHER, Clerk

By:

Deputy Clerk

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