                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            NOV 14 2001
                     UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                      PATRICK FISHER
                                                                                Clerk


 THEODORE GATEWOOD,

          Petitioner - Appellant,
 v.
                                                         No. 01-1286
                                                      (D.C. No. 01-Z-805)
 GARY WATKINS; KEN SALAZAR,
                                                           (D. Colo.)
 Attorney General of the State of
 Colorado,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.


      Theodore Gatewood, Jr., proceeding pro se, appeals the district court’s

dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on

the basis that petitioner failed to exhaust available state remedies for his claims.

Gatewood now seeks a certificate of appealability (“COA”) pursuant to 28 U.S.C.

§ 2253(c)(2). We decline to grant COA and dismiss the case.


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Gatewood pled guilty to theft in Colorado state court on October 4, 2000.

He was sentenced to three years imprisonment. Gatewood did not file a direct

appeal, but through counsel he did file a post-conviction motion for

reconsideration. The state court denied the motion on February 16, 2001.

Gatewood has not filed any other post-conviction motions.

      He filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on

May 2, 2001. On May 11, 2001, Gatewood was ordered to show cause why the

action should not be dismissed for failure to exhaust state remedies. The district

court found no excuse for his failure to exhaust and dismissed.

      “An application for a writ of habeas corpus . . . shall not be granted unless

it appears that (A) the applicant has exhausted the remedies available in the courts

of the State.” 28 U.S.C. § 2254(b)(1). “Generally, when a habeas petitioner has

failed to exhaust his state court remedies, a federal court should dismiss the

petition without prejudice so that those remedies may be pursued.” Demarest v.

Price, 130 F.3d 922, 939 (10th Cir. 1997).

      The district court correctly concluded that because Gatewood failed to

present his habeas claims to the state courts, he has not exhausted state remedies

for those claims. Gatewood claims he is unable to exhaust state remedies because

he has a mental disorder and there is no bonding process at the state level for a

post-conviction motion for reconsideration. He further asserts that there is no


                                         -2-
corrective state process because the statute of limitations has run on his direct

appeal. The exhaustion requirement is “not to be lightly overlooked,” Id, 130

F.3d at 933, and there is no reason that any of Gatewood’s claims prevent him

from presenting his federal constitutional claims to the state court first.

      Accordingly, we DENY Gatewood’s request for a certificate of

appealability, finding he has not made a substantial showing of the denial of a

constitutional right as required by 28 U.S.C. § 2253(c)(2). Petitioner’s motion to

proceed in forma pauperis is GRANTED, and the matter is DISMISSED. The

mandate shall issue forthwith.



                                                      Entered for the Court,



                                                      Carlos F. Lucero
                                                      Circuit Judge




                                          -3-
