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.)
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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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