                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 28, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 LYNN E. SCOTT,

          Petitioner-Appellant,

 v.
                                                         No. 10-1333
                                                 (D.C. No. 1:10-CV-881-ZLW)
 STEVEN GREEN, Warden of BVCC,
                                                           (D. Colo.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Lynn Scott was convicted of various crimes in Colorado state court and is

incarcerated at a Colorado correctional facility. This case began when he filed a

petition for writ of habeas corpus under 28 U.S.C. § 2241, arguing that he was

being held in violation of due process and the Eighth Amendment. The district

court denied the petition, holding that Mr. Scott had failed to exhaust state court

remedies before filing his federal habeas petition. The court also denied Mr.

Scott’s subsequent motion for reconsideration.



      *
        This order is not binding precedent except under the doctrines of law of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.
      In an effort to challenge these rulings, Mr. Scott filed a notice of appeal.

To appeal, however, he first requires a certificate of appealability (COA). We

thus construe his notice of appeal as an application for the needed certificate. See

Fed. R. App. P. 22(b)(2). A COA cannot issue unless the applicant makes “a

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

§ 2253(c)(2). Where, as here, the district court dismisses a § 2241 petition on

procedural grounds, a COA is warranted only if “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Because Mr. Scott proceeds pro se, we

afford his submissions a solicitous construction.

      Even doing so, we cannot help but conclude that no COA is warranted. The

district court correctly ruled that Mr. Scott failed to exhaust his claims in state

court before seeking federal relief, and amply explained the reasons why this is

so. Before us, Mr. Scott complains that any attempt to remedy this problem, to

seek to exhaust his claims in state court now, would be barred by state procedural

law as untimely. For this reason, he asks us to excuse his exhaustion problem.

We cannot do so. A state rule of procedure barring a petitioner’s claim must be

respected unless and until the petitioner can show either that (1) good cause exists

for his failure to meet its demands “and actual prejudice as a result of [his]

alleged violation of federal law,” or (2) “failure to consider [his] claims will

result in a fundamental miscarriage of justice.” Magar v. Parker, 490 F.3d 816,

                                          -2-
819 (10th Cir. 2007). Mr. Scott has not convincingly shown that either of these

exceptions pertains to his case. So it is that we deny Mr. Scott’s COA

application, dismiss his appeal, and deny his motion for leave to proceed in forma

pauperis.

                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




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