                                                                               FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                        UNITED STATES COURT OF APPEALS October 8, 2013
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 ALLAN D. SCHUBERT,
                 Petitioner–Appellant,                   Nos. 13-7019 & 13-7020
           v.                                    (D.C. Nos. 6:12-CV-00263-RAW-KEW
                                                    & 6:12-CV-00278-RAW-KEW)
 JUSTIN JONES,                                                  (E.D. Okla.)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Petitioner Allan Schubert, a state prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of two separate § 2241 habeas petitions

challenging two prison misconduct convictions, one for group disruptive behavior and the

other for battery. The first misconduct conviction, which is the subject of appeal number

13-7019, involved an incident that occurred on September 2, 2010. Following his

conviction, Petitioner appealed to the facility head. After conducting a due process

review, the facility head affirmed the findings of the disciplinary officer. Petitioner then

attempted on three occasions to appeal to the Administrative Review Authority. His first



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
appeal was returned unanswered because it was submitted on the incorrect form, but he

was given the opportunity to refile within ten days. Petitioner’s second appeal was

returned unanswered because Petitioner had failed to sign and date the form at the

designated locations. Petitioner then resubmitted his second appeal with a letter

requesting that the appeal be considered despite the fact he failed to properly complete the

form. This correspondence was not answered. Following his failed attempts to appeal,

Petitioner filed a petition for judicial review in the Oklahoma County District Court

pursuant to Oklahoma Statute title 57, section 564.1. The court dismissed the petition for

lack of jurisdiction, finding “Petitioner never correctly submitted his appeal to the

Director,” and “[t]hus, . . . never fully exhausted [his] administrative remedies.” (No. 13-

7019, R. at 141.) Petitioner appealed to the Oklahoma Supreme Court, which dismissed

the appeal as untimely because it was filed beyond the thirty-day time-limit.

       The history surrounding Petitioner’s second misconduct conviction is much the

same. This conviction, which is the subject of appeal number 13-7020, involved an

incident that occurred on April 19, 2011. Following his conviction, Petitioner again

sought due process review, and the facility head again approved the findings of the

disciplinary officer. According to the Oklahoma State Penitentiary appeal files, Petitioner

did not appeal the outcome of his disciplinary hearing. Rather, Petitioner submitted three

grievances—not misconduct appeals—to the Administrative Review Authority. Each

was returned unanswered because of filing deficiencies, and Petitioner was instructed to

follow the correct procedures and that “[c]ontinued improper submissions may result in

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the loss of appeal privileges.” (No. 13-7020, R. at 66.) Petitioner did not correct the

identified errors. Instead, he again filed a petition for judicial review in the Oklahoma

County District Court, which dismissed the petition for lack of jurisdiction in light of

Petitioner’s failure to exhaust his administrative remedies. He appealed to the Oklahoma

Supreme Court, but this appeal, too, was dismissed as untimely.

       Petitioner then filed the two instant § 2241 petitions challenging his misconduct

convictions on several grounds. In each case, Respondent moved to dismiss the petition

as procedurally barred. The district court agreed, concluding that the state court’s

dismissal of Petitioner’s “petition for judicial review . . . for failure to exhaust” and the

dismissal of his appeal “for failure to appeal in a timely manner” constitute “independent

and adequate state ground[s] that bar[] federal habeas review.” (No. 13-7019, R. at 156-

57 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see also No. 13-7020, R. at

92-93.) It further concluded that Petitioner had failed to show cause sufficient to excuse

the procedural bar. Accordingly, the district court dismissed both of Petitioner’s

petitions. Petitioner now seeks a certificate of appealability, arguing the district court

erred in adopting the state court’s conclusion that he failed to exhaust his administrative

remedies and in concluding that the state court’s reliance on Oklahoma’s procedural rules

constituted an independent and adequate state ground barring habeas review.

       After thoroughly reviewing the records and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s conclusion that both

of Petitioner’s petitions were procedurally barred and that Petitioner has not shown

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sufficient cause to excuse the procedural bar. See Slack v. McDaniel, 529 U.S. 473, 484

(2000). As we have previously explained, Oklahoma courts’ dismissal of a petition for

judicial review for failure to exhaust administrative remedies constitutes an adequate and

independent state law procedural ground. Loftis v. Okla. Dep’t of Corr., 308 F. App’x

290, 292 (10th Cir. 2009). So too does dismissal for failing to timely file a notice of

appeal. See Hamm v. Saffle, 300 F.3d 1213, 1217 (10th Cir. 2002) (concluding that

“failure to comply with [the thirty-day notice of appeal requirement] constituted an

independent and adequate state ground that bars federal habeas review”). Therefore, for

substantially the same reasons given by the district court, we DENY Petitioner’s requests

for a certificate of appealability and DISMISS these appeals.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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