                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 27, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 CRAIG GAWLAS,

              Petitioner - Appellant,

 v.                                                    No. 13-6209
                                                (D.C. No. 5:13-CV-00253-R)
 WILLIAM MONDAY,                                       (W.D. Okla.)

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      Proceeding pro se, state prisoner Craig Gawlas seeks a certificate of

appealability (“COA”) in order to appeal the dismissal of his 28 U.S.C. § 2241

petition for failure to exhaust state remedies. Finding that Mr. Gawlas has not

met the standards for issuance of a COA, we deny him a COA and dismiss this

matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                    BACKGROUND

         While in his prison cell, Mr. Gawlas combined cinnamon and apples in a

gallon jug, thereby creating some form of “homebrew.” Prison officials

discovered this concoction during a cell search. He was found guilty of a Class X

misconduct for manufacturing an intoxicant, or a “homebrew,” and the

administrative review authority affirmed the disciplinary conviction on

November 6, 2012. Mr. Gawlas did not seek judicial review in the state district

court.

         Mr. Gawlas requested the instant habeas relief based on his view that there

was insufficient evidence to support the disciplinary conviction. The Respondent

moved to dismiss the petition because Mr. Gawlas failed to exhaust his state court

remedies and his habeas petition was therefore procedurally barred.

         The district court, after referring the matter to a magistrate judge, dismissed

the petition with prejudice, finding that Mr. Gawlas had failed to exhaust his

administrative remedies. The court noted that the exhaustion requirement “may

be excused if there is ‘an absence of available State corrective process’ or where

‘circumstances exist that render such process ineffective to protect the rights of

the applicant.’” Order at 2 (quoting Magar v. Parker, 490 F.3d 816 (10th Cir.

2007) (citations omitted)). The district court proceeded to find that adequate state

corrective process did exist; that pursuit of that process would not have been

futile; and that Mr. Gawlas’s argument that it was implausible that the Oklahoma

                                           -2-
Department of Corrections (“ODOC”) would overturn his finding of guilt for fear

of a subsequent § 1983 action was “groundless.” Id. Finally, the court found

there was no “cause” excusing Mr. Gawlas’s failure to pursue his state

administrative remedy, nor could he establish that a fundamental miscarriage of

justice would flow from his conviction. Thus, his failure to exhaust his state

court remedies acted as a bar to federal habeas review. The court dismissed his

habeas petition with prejudice. Mr. Gawlas’s request for a COA followed.



                                   DISCUSSION

      Under Montez v. McKinna, 208 F.3d 862 (10th Cir. 2000), a state prisoner

must obtain a COA before being heard on the merits of his appeal. “A COA is a

jurisdictional prerequisite to our review of a petition for a writ of habeas corpus.”

Allen v. Zavaras, 568 F.3d. 1197, 1199 (10th Cir. 2009); see 28 U.S.C.

§ 2253(c)(1)(A). A COA should issue “only if the applicant has made a

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

§ 2253(c)(2). He can do this by demonstrating “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Dodd v. Trummell, 730 F.3d 1177,

1205 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).




                                         -3-
      An applicant denied habeas relief on procedural grounds “must also show

‘that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th

Cir. 2008) (quoting Slack, 529 U.S. at 484). “Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Slack, 529 U.S. at 484.

      As the district court observed, Mr. Gawlas made no serious argument

regarding cause or any reason for his failure to pursue his state administrative

remedies. Indeed, in his request for a COA to our court, Mr. Gawlas concedes

that “[a]ll parties agree that the Appellant failed to ‘properly’ exhaust all

available state remedies to address his claim. And the Appellant acknowledges

that a petitioner who fails to timely raise such claims in the state court is

procedurally barred from subsequently raising those same claims in federal

court.” Appellant’s Op. Br. at 9. He then acknowledges that the “Tenth Circuit

has held this procedural default may be excused if the petitioner can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrates that failure to consider the claims will result in a

fundamental miscarriage of justice.” Id.




                                           -4-
      It appears, however, that Mr. Gawlas does not appreciate the substance of

those standards and statements. Rather than directly addressing cause or

prejudice or a fundamental miscarriage of justice, he simply attempts to challenge

the validity of the original disciplinary conviction in prison—when he was found

in possession of contraband/“homebrew.” We assume this is an effort to establish

his “actual innocence” so that upholding his conviction would amount to a

fundamental miscarriage of justice. His unsupported and conclusory assertion

that he had not produced any unlawful “homebrew” hardly satisfies the

“fundamental miscarriage of justice” exception to procedural bar. Mr. Gawlas

thus completely fails to establish any debate about the propriety of the district

court’s procedural ruling dismissing his case.

      We note Mr. Gawlas’s pro se status. It does not, however, excuse him from

the fundamental obligation to craft legal arguments and follow the basic rules of

procedure in presenting a coherent and relevant appellate argument. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Although we liberally

construe pro se filings, we do not assume the role of advocate.”).




                                         -5-
                              CONCLUSION

      For the foregoing reasons, we DENY Mr. Gawlas a COA and DISMISS this

matter. We also DENY Mr. Gawlas his request to proceed on appeal in forma

pauperis.

                                           ENTERED FOR THE COURT


                                           Stephen H. Anderson
                                           Circuit Judge




                                     -6-
