                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               June 19, 2020
                         _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 SHAWN J. GIESWEIN,

       Petitioner - Appellant,

 v.                                                            No. 20-6049
                                                     (D.C. No. 5:19-CV-00883-PRW)
 STATE OF OKLAHOMA,                                           (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.**
                  _________________________________

       Pro se1 petitioner-appellant Shawn J. Gieswein seeks a certificate of appealability

(“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 motion for

habeas relief. Because the district court correctly held that Gieswein failed to exhaust his




       *
          This order is not binding precedent except under the doctrines of law of the case,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.
        **
           After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
        1
          Because Gieswein is proceeding pro se, we liberally construe his filings. United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). That said, liberally construing a pro
se filing does not include supplying additional factual allegations or constructing a legal
theory on the appellant’s behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th
Cir. 1997).
available state-court remedies, we deny his request for a COA and dismiss the appeal.

We also grant his motion to proceed in forma pauperis.

                                             I.

        Gieswein is a federal inmate serving a twenty-year sentence for witness tampering

and being a felon in possession of a firearm. In 2008, before he was incarcerated for

these federal crimes, he was charged in Oklahoma state court with assault and battery of a

police officer. State v. Gieswein, Case No. CF-2008-3772.

       On November 30, 2016, while Gieswein was serving his federal sentence, the

Oklahoma County District Attorney lodged a detainer with federal officials to hold him

for trial on his Oklahoma charge. Over the next three years, Gieswein filed several

motions to dismiss that charge on the ground that his speedy trial rights were being

violated. See Gieswein, Case No. CF-2008-3772. The Oklahoma County District

Attorney eventually released the detainer on June 11, 2019, but the charge has not been

dismissed and Gieswein’s motions are still pending.

       Gieswein has filed two petitions for writ of mandamus in the Oklahoma Court of

Criminal Appeals (“OCCA”) seeking to require the Oklahoma County District Court to

address his motions. But the OCCA dismissed both petitions for failure to comply with

its procedural rules.

       In November 2019, Gieswein filed a § 2254 motion in federal district court

seeking the dismissal of the Oklahoma assault and battery charge because the Oklahoma

court failed to either adjudicate or dismiss the charge. Gieswein argued that the

Oklahoma court’s failure to act violated both his speedy trial rights and the Interstate

                                             2
Agreement on Detainers Act. The district court dismissed Gieswein’s § 2254 motion,

however, because he failed to exhaust his available state-court remedies. The district

court then denied Gieswein’s request for a COA.

                                              II.

       We may issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, “the district

court denies a habeas petition on procedural grounds . . . , a COA should issue when the

prisoner shows, at least, that 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, 484 (2000). “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case,” a COA may not be granted.

Id.

       A federal inmate bringing a § 2254 challenge to a state detainer against him

generally must exhaust his available state-court remedies before a federal court can

consider his petition. 28 U.S.C. § 2254(b)(1)(A); Knox v. State of Wyo., 959 F.2d 866,

867–68 (10th Cir. 1992). To successfully exhaust his available state-court remedies, “a

federal habeas petitioner must provide the state courts with a ‘fair opportunity’ to apply

controlling legal principles to the facts bearing upon his constitutional claim.” Grant v.

Royal, 886 F.3d 874, 890 (10th Cir. 2018) (brackets omitted). A petitioner has not

exhausted his state-court remedies if he still “has the right under the law of the State to

raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

                                              3
                                            III.

       We agree with the district court that Gieswein failed to exhaust his available state-

court remedies. On appeal, Gieswein argues that he exhausted his state-court remedies

because he “filed multiple Motions, Notices and Writs in the Oklahoma County District

Court and the Oklahoma Superior court,” but the Oklahoma County District Court has

failed to either adjudicate or dismiss his case. Aplt. Br. at 1. Even though the Oklahoma

district court has failed to act, Gieswein still has an available state-court remedy. He may

compel the Oklahoma district court to consider his motions by filing a petition for writ of

mandamus in the OCCA. See State ex rel. Boatman v. Payne, 257 P.2d 842, 846 (Okla.

Crim. App. 1953) (explaining that relief by mandamus can be sought by the defendant

“where the trial court [] refuses to act”). Because Gieswein has failed to file a valid

petition for mandamus in the OCCA, he still has an “available procedure” for presenting

his claim to the state court. See 28 U.S.C. § 2254(c).

       Although Gieswein has already filed two petitions for writ of mandamus in the

OCCA, both were dismissed for failure to comply with procedural rules.2 Consequently,



       2
        In Gieswein’s first petition for writ of mandamus, he failed to serve notice on the
opposing party as required by Rule 10.3 of the Rules of the Oklahoma Court of Criminal
Appeals. Order Declining Jurisdiction, No. MA-2018-0938 (Okla. Crim. App. Sept. 26,
2018). In Gieswein’s second petition, he failed to demonstrate that he was denied relief
by the Oklahoma County District Court as required by Rule 10.1.A. of the Rules of the
Oklahoma Court of Criminal Appeals. Order Declining Jurisdiction, No. MA-2019-0899
(Okla. Crim. App. Dec. 23, 2019). Gieswein can correct this second deficiency by
showing that he has been filing motions since 2016, which are all still pending before the
Oklahoma County District Court. See Webber v. Dist. Court of Tulsa Cty., 895 P.2d 728,
730 (Okla. Crim. App. 1995) (“A district court’s failure to timely rule upon discovery
motions is a matter which may be addressed and remedied by a writ of mandamus.”).
                                              4
Gieswein must perfect his writ of mandamus in the OCCA in order to exhaust his state-

court remedies.

                                            IV.

       Because Gieswein failed to exhaust his available state-court remedies, no

reasonable jurist could debate that the district court’s dismissal of his § 2254 motion was

proper. We therefore deny the COA and dismiss the appeal. We also grant Gieswein’s

motion to proceed in forma pauperis.




                                              Entered for the Court


                                              Allison H. Eid
                                              Circuit Judge




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