Anthony Ray Jenkins, Plaintiff-appellant, v. Don Scott, County Attorney, Judge Tom Smith and Judge Keithwilson, Defendants-appellees, 74 F.3d 1249 (10th Cir. 1996)

ORDER AND JUDGMENT¹ 

LOGAN, Judge

This matter is before the court on petitioner Anthony Ray Jenkins's application for a certificate of probable cause and motion to be allowed to proceed on appeal in forma pauperis. The right of a petitioner convicted of a state crime to appeal a federal district court's denial of habeas corpus relief is conditioned upon either the district court or this court granting a certificate of probable cause. See 28 U.S.C. 2253.

The Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), declared that the "primary means of separating meritorious from frivolous [habeas corpus] appeals should be the decision to grant or withhold a certificate of probable cause." We will not grant such a certificate unless the petitioner makes "a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings." Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994) (citing Barefoot, 463 U.S. at 893 & n. 4).

Construing petitioner's claim as both a petition for writ of habeas corpus and a civil rights action under 42 U.S.C.1983, the district court correctly analyzed the case in its order of May 23, 1995, and we can add nothing to that analysis.

We conclude that petitioner has failed to make the necessary showing to warrant our issuance of a certificate of probable cause or to permit him to proceed on appeal in forma pauperis. Therefore, we deny his application and motion and DISMISS the appeal.

The mandate shall issue forthwith.