                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              June 21, 2005
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 GREGORY LYNN GALES,

          Petitioner - Appellant,

 v.                                                       No. 04-3414
                                                          (D. Kansas)
 LOUIS BRUCE, Warden; PHILL                       (D.Ct. No. 04-CV-3300-SAC)
 KLINE, Attorney General of the State
 of Kansas,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, 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.

      Petitioner-Appellant Gregory Lynn Gales, a state prisoner appearing pro

se, 1 seeks a certificate of appealability ("COA") allowing him to appeal the


      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
district court's order denying his petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. Because we conclude Gales has not exhausted his state court

remedies, we deny a COA and dismiss the appeal. See 28 U.S.C. § 2254(b)(1);

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).

       The parties are familiar with the facts and we need not restate them here.

On appeal, Gales reasserts the claims he presented below, specifically that his

Fourteenth Amendment Due Process rights were violated in his state court

criminal proceedings as they pertained to his right to a speedy trial, the

admissibility of evidence, the lack of a probable cause hearing and the use of a

defective complaint and affidavits. Gales acknowledged to the district court that

the issues raised in his habeas petition were not raised in his direct appeal, nor did

he pursue any state post-conviction relief under K AN . S TAT . A NN . § 60-1507. The

district court dismissed Gales’ habeas petition without prejudice for failure to

exhaust his state court remedies.

      After careful consideration of the materials submitted by Gales against a

backdrop of the state court record, the district court’s conclusions are not

reasonably debatable. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In

this appeal, Gales does not allege that he has exhausted his state court remedies,

but rather argues the district court erred because it “has no jurisdiction to judge

what arises out of [the] direct appeal process.” (R., Application for COA at 3.)


                                          -2-
Gales misapprehends 28 U.S.C. § 2254(b)(1).

      For substantially the same reasons set forth by the district court, we DENY

Gales' request for a COA and DISMISS the appeal.

                               Entered by the Court:

                               Terrence L. O’Brien
                               United States Circuit Judge




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