Gawlas v. Monday , 556 F. App'x 722 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
February 27, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CRAIG GAWLAS,
Petitioner - Appellant,
v. No. 13-6209
(D.C. No. 5:13-CV-00253-R)
WILLIAM MONDAY, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Proceeding pro se, state prisoner Craig Gawlas seeks a certificate of
appealability (“COA”) in order to appeal the dismissal of his 28 U.S.C. § 2241
petition for failure to exhaust state remedies. Finding that Mr. Gawlas has not
met the standards for issuance of a COA, we deny him 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This order is not binding precedent, except under the doctrines of law of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.
BACKGROUND
While in his prison cell, Mr. Gawlas combined cinnamon and apples in a
gallon jug, thereby creating some form of “homebrew.” Prison officials
discovered this concoction during a cell search. He was found guilty of a Class X
misconduct for manufacturing an intoxicant, or a “homebrew,” and the
administrative review authority affirmed the disciplinary conviction on
November 6, 2012. Mr. Gawlas did not seek judicial review in the state district
court.
Mr. Gawlas requested the instant habeas relief based on his view that there
was insufficient evidence to support the disciplinary conviction. The Respondent
moved to dismiss the petition because Mr. Gawlas failed to exhaust his state court
remedies and his habeas petition was therefore procedurally barred.
The district court, after referring the matter to a magistrate judge, dismissed
the petition with prejudice, finding that Mr. Gawlas had failed to exhaust his
administrative remedies. The court noted that the exhaustion requirement “may
be excused if there is ‘an absence of available State corrective process’ or where
‘circumstances exist that render such process ineffective to protect the rights of
the applicant.’” Order at 2 (quoting Magar v. Parker, 490 F.3d 816 (10th Cir.
2007) (citations omitted)). The district court proceeded to find that adequate state
corrective process did exist; that pursuit of that process would not have been
futile; and that Mr. Gawlas’s argument that it was implausible that the Oklahoma
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Department of Corrections (“ODOC”) would overturn his finding of guilt for fear
of a subsequent § 1983 action was “groundless.” Id. Finally, the court found
there was no “cause” excusing Mr. Gawlas’s failure to pursue his state
administrative remedy, nor could he establish that a fundamental miscarriage of
justice would flow from his conviction. Thus, his failure to exhaust his state
court remedies acted as a bar to federal habeas review. The court dismissed his
habeas petition with prejudice. Mr. Gawlas’s request for a COA followed.
DISCUSSION
Under Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000), a state prisoner
must obtain a COA before being heard on the merits of his appeal. “A COA is a
jurisdictional prerequisite to our review of a petition for a writ of habeas corpus.”
Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); see 28 U.S.C.
§ 2253(c)(1)(A). A COA should issue “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2). He can do this 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.” Dodd v. Trummell, 730 F.3d 1177,
1205 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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An applicant denied habeas relief on procedural grounds “must also show
‘that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th
Cir. 2008) (quoting Slack, 529 U.S. at 484). “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.” Slack, 529 U.S. at 484.
As the district court observed, Mr. Gawlas made no serious argument
regarding cause or any reason for his failure to pursue his state administrative
remedies. Indeed, in his request for a COA to our court, Mr. Gawlas concedes
that “[a]ll parties agree that the Appellant failed to ‘properly’ exhaust all
available state remedies to address his claim. And the Appellant acknowledges
that a petitioner who fails to timely raise such claims in the state court is
procedurally barred from subsequently raising those same claims in federal
court.” Appellant’s Op. Br. at 9. He then acknowledges that the “Tenth Circuit
has held this procedural default may be excused if the petitioner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrates that failure to consider the claims will result in a
fundamental miscarriage of justice.” Id.
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It appears, however, that Mr. Gawlas does not appreciate the substance of
those standards and statements. Rather than directly addressing cause or
prejudice or a fundamental miscarriage of justice, he simply attempts to challenge
the validity of the original disciplinary conviction in prison—when he was found
in possession of contraband/“homebrew.” We assume this is an effort to establish
his “actual innocence” so that upholding his conviction would amount to a
fundamental miscarriage of justice. His unsupported and conclusory assertion
that he had not produced any unlawful “homebrew” hardly satisfies the
“fundamental miscarriage of justice” exception to procedural bar. Mr. Gawlas
thus completely fails to establish any debate about the propriety of the district
court’s procedural ruling dismissing his case.
We note Mr. Gawlas’s pro se status. It does not, however, excuse him from
the fundamental obligation to craft legal arguments and follow the basic rules of
procedure in presenting a coherent and relevant appellate argument. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Although we liberally
construe pro se filings, we do not assume the role of advocate.”).
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CONCLUSION
For the foregoing reasons, we DENY Mr. Gawlas a COA and DISMISS this
matter. We also DENY Mr. Gawlas his request to proceed on appeal in forma
pauperis.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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