Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.alfonso Albert Lopez, Plaintiff-appellant, v. Michael Parsons, Attorney General of Oklahoma, Defendants-appellees, 937 F.2d 616 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 937 F.2d 616 (10th Cir. 1991) July 2, 1991

Before McKAY, SEYMOUR and EBEL, Circuit Judges.


SEYMOUR, Circuit Judge.

Alfonso Lopez, a pro se prisoner, brought this petition under 28 U.S.C. § 2254 (1988) challenging his state court conviction for first degree murder following a guilty plea. Lopez presented three grounds for relief in the district court: the State's failure to hold a competency hearing prior to his guilty plea; the alleged inadequacy of his counsel; and the denial of access to transcripts necessary to prepare his pleading. The district court determined that the issues of Lopez' competency procedures and the adequacy of his counsel were successive, having been previously raised and decided, and that relitigation of these claims was barred because Lopez had failed to make a factual showing of colorable innocence which the district court believed was required by Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion). The court also refused to consider the claim based on lack of transcripts, concluding that this issue, which had not been raised in Lopez' prior federal habeas proceeding, constituted an abuse of the writ. The court denied Lopez a certificate of probable cause and his motion for leave to appeal in forma pauperis.

On appeal, Lopez raises only the district court's refusal to consider his successive claims.1  We grant Lopez' request to proceed in forma pauperis and his application for a certificate of probable cause. We have carefully reviewed the record and Lopez's contentions, and we affirm substantially for the reasons given by the district court. See McClesky v. Zant, 111 S. Ct. 1454, 1471 (1991) (adopting Kuhlmann plurality limitation of "ends of justice" exception to showing of factual innocence).


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3


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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument