Wanjiku v. Drummond

── Wanjiku v. Drummond ── Court: Court of Appeals for the Tenth Circuit Date: April 16, 2026 Category: General Appellate Case: 25-5161 Document: 14-1 Date Filed: 04/16/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 16, 2026 _________________________________ Christopher M. Wolpert Clerk of Court ERICK WANJIKU, Petitioner - Appellant, v. No. 25-5161 (D.C. No. 4:25-CV-00161-SEH-JFJ) GENTNER F DRUMMOND, (N.D. Okla.) Respondent - Appellee. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________ Before TYMKOVICH, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________ Erick Wanjiku proceeds pro se to request a certificate of appealability (COA) to appeal the district court’s order dismissing his 28 U.S.C. § 2254 petition for lack of jurisdiction. 1 He also requests to proceed in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we deny Wanjiku’s IFP motion, deny a COA, and dismiss this matter. This order is not binding precedent except under the doctrines of law of * the case, res judicata, and collateral estoppel.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. Because Wanjiku proceeds pro se, we liberally construe his arguments, 1 but do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023).  Appellate Case: 25-5161 Document: 14-1 Date Filed: 04/16/2026 Page: 2 BACKGROUND On January 5, 2022, an Oklahoma jury convicted Wanjiku for domestic assault and battery by strangulation, in violation of Okla. Stat. tit. 21, § 664(J). The state court sentenced him to three years’ imprisonment. When Wanjiku’s state prison term ended in May 2023, the Department of Homeland Security immediately took him into custody and transported him to an Immigration and Customs Enforcement field office in Oklahoma City. At the field office, Wanjiku allegedly did not allow officials to take his fingerprints. An altercation ensued between Wanjiku and an ICE officer, and Wanjiku was later charged and convicted on two counts of assaulting a federal officer. See generally 18 U.S.C. § 111(a)(1). On January 17, 2024, he was sentenced to another three years’ imprisonment, this time in federal custody. Wanjiku filed his 28 U.S.C. § 2254 habeas petition on April 7, 2025. In it, he challenged his state conviction for domestic assault and battery by strangulation. The district court dismissed the petition for lack of jurisdiction, reasoning that Wanjiku was not in state custody when he filed. The court also denied a COA. Wanjiku timely appealed. DISCUSSION “A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal.” Buck v. Davis, 580 U.S. 100, 115 (2017). Rather, Wanjiku must first obtain a COA. See 2  Appellate Case: 25-5161 Document: 14-1 Date Filed: 04/16/2026 Page: 3 28 U.S.C. § 2253(c)(1)(A). A COA is a jurisdictional prerequisite to appellate review. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will not grant a COA unless Wanjiku makes “a substantial showing of the denial of a cons