UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

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DEANGELO GORDON, 

 Petitioner - Appellant, 

v. 

JIM FARRIS, 

 Respondent - Appellee. 

No. 15-6004 

(D.C. No. 5:13-CV-01084-R) 

(W.D. Okla.) 

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ORDER AND JUDGMENT*

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Before GORSUCH, McKAY, and BACHARACH, Circuit Judges. 

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After a disciplinary hearing, Oklahoma prisoner Deangelo Gordon was found 

guilty of violating a prison regulation and lost 365 days of good-time credits. He 

appealed that ruling to the state district court and, after that appeal was denied, 

attempted a further appeal in the state judicial system. Under Oklahoma law, a 

prisoner appealing a state district court ruling in a good-time suit must file a 

compliant notice of appeal with the state district court within ten days of the district 

court’s decision and a petition of error with the Court of Criminal Appeals within 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 17, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

thirty days of the district court’s decision. Okla. Stat. tit. 57, § 564.1(G); Okla. Ct. 

Crim. App. R. 15.3(A), 15.4(A). Mr. Gordon did neither. His notice of appeal stated 

that he intended to appeal to the Oklahoma Court of Civil Appeals rather than the 

Oklahoma Court of Criminal Appeals. And he failed to file a petition of error within 

the required thirty days. Eventually, his appeal was dismissed for being untimely and 

initiated with the wrong court. 

Having failed in state court to secure relief, Mr. Gordon next filed this 

28 U.S.C. § 2241 federal habeas application. But the district court found that he had 

failed to exhaust state remedies and dismissed his application as procedurally 

defaulted. We granted a certificate of appealability to review the question whether 

Mr. Gordon can satisfy the requirements necessary to invoke an exception to his 

procedural default, and after examining the record we affirm the district court’s 

decision. 

Mr. Gordon admits that he failed to exhaust the state appellate remedies 

available to him, but argues that we should excuse any resulting procedural default 

because he can show both “cause and prejudice.” See Magar v. Parker, 490 F.3d 

816, 819 (10th Cir. 2007). When it comes to cause, Mr. Gordon asserts that his 

failure to file a compliant notice of appeal invoking the jurisdiction of the Oklahoma 

Court of Criminal Appeals was an oversight that the state courts should have helped 

him correct. But to excuse a procedural default, a petitioner must show a cause 

“external to [himself], something that cannot fairly be attributed to him [that] 

impeded his efforts to comply with the State’s procedural rule.” Maples v. Thomas, 
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132 S. Ct. 912, 922 (2012) (brackets, ellipsis, and internal quotation marks omitted). 

And that much simply isn’t present here. Mr. Gordon does not suggest that the state 

courts impeded him from filing a correct notice of appeal or misled him into filing an 

incorrect one. And Mr. Gordon’s own error cannot constitute “cause” because it was 

not external to him. See Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (stating 

that pro se status and lack of legal knowledge does not establish cause); Rodriguez v. 

Maynard, 948 F.2d 684, 687-88 (10th Cir. 1991) (same); Magar, 490 F.3d at 819-20 

(finding no cause for procedural default when a prisoner could not prove officials 

impeded his ability to submit an appeal). Moreover, even if Mr. Gordon had filed a 

correct notice of appeal, his appeal would still have been dismissed because he failed 

to file a timely petition of error with any court. See Okla. Ct. Crim. App. R. 15.3(A) 

(“The filing of the petition in error is jurisdictional and failure to timely file 

constitutes waiver of the right to appeal.”). Given Mr. Gordon’s failure to establish 

cause for his procedural default, we have no reason to reach the question of prejudice 

as the district court did.1

 

 1

 Mr. Gordon’s supplemental opening brief argues not only that his claim isn’t 

procedurally defaulted under state law, but also that Oklahoma courts do not 

consistently follow their own rules and so we should disregard them here. This issue 

is beyond the scope of the certificate of appealability. Further, it was not raised in 

the district court, and “[t]he general rule is that an appellate court will not consider 

an issue raised for the first time on appeal.” Tele-Commc’ns, Inc. v. C.I.R., 12 F.3d 

1005, 1007 (10th Cir. 1993). 
4 

Affirmed. 

ENTERED FOR THE COURT 

Neil M. Gorsuch 

Circuit Judge