F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 15 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALAN DALE SMITH,
Petitioner-Appellant,
v. No. 00-2512
(D.C. No. CIV-99-1181)
WARDEN ROLLINS, Warden, Eyman (D.N.M.)
Rynning Unit, Florence, Arizona;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Alan Dale Smith, a New Mexico state prisoner incarcerated in
Arizona, was convicted, pursuant to a plea agreement, of kidnaping, aggravated
burglary and aggravated assault. Proceeding pro se, he seeks a certificate of
appealability (COA) to challenge the district court’s order denying his petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (no appeal unless COA issued). We deny issuance of a COA and
dismiss the appeal.
After his conviction, petitioner filed a motion for post-conviction relief
with the state court, but he did not give any grounds for relief. Consequently,
the state court judge mailed copies of the New Mexico state rules pertaining to
state post-conviction relief, including the rule for appealing from an order
denying post-conviction relief. Thereafter, petitioner filed another request for
post-conviction relief with the state court, which was denied on the merits.
He failed to file a timely notice of appeal from that denial.
Petitioner then sought federal habeas relief, explaining that he had been
unable to appeal timely the denial of his state post-conviction motion because, by
the time he received the ruling, there were only five days until the deadline and he
had been unable to get a form. The district court held that petitioner had not
exhausted his claims because he had not appealed the state court’s ruling.
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Petitioner’s failure to appeal the state post-conviction denial will
procedurally bar his federal habeas claims unless he can (1) show cause for the
default and actual prejudice, or (2) demonstrate that the failure to consider his
claims will result in a fundamental miscarriage of justice. Coleman v. Thompson ,
501 U.S. 722, 750 (1991); Cannon v. Gibson ,259 F.3d 1253
, 1265 (10th Cir. 2001). Because the district court dismissed the habeas petition on procedural grounds without reaching petitioner’s underlying constitutional claims, we examine whether “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,529 U.S. 473
, 478 (2000).
Petitioner has attached to his appellate brief various documents that were
not provided to the district court. We do not consider them, but instead we
evaluate the information on which the district court was required to make its
decision. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 506
(10th Cir. 1994) (appellate court will not consider evidence not before district
court). Petitioner’s reasons for his procedural default – that he had only five days
to file a notice of appeal and he had been unable to get an appropriate form – do
not demonstrate “cause.” Much of his argument is devoted to showing the
obstacles he encountered in obtaining forms for post-conviction relief, rather than
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the forms necessary to perfect his appeal. He has not explained why, in the five
days between his receipt of the order denying post-conviction relief and the
deadline for filing a notice of appeal, he was unable to mail a notice of appeal.
He has also not shown how any problems with the Arizona prison legal system
adversely affected his ability to file a notice of appeal. Therefore, the district
court’s procedural ruling was correct, and we need not examine the underlying
constitutional claims. Slack, 529 U.S. at 485. Moreover, petitioner does not
present an argument that federal review of the claims is necessary to prevent
a fundamental miscarriage of justice. Therefore, he is barred from bringing the
claims in federal habeas proceedings.
The application for issuance of a COA is denied. Appeal DISMISSED.
The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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