                                                                          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      This order and judgment is not binding precedent, except under the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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