Rolly O. Kinnell, Petitioner-appellant, v. State of Kansas/mr. Oliver, Respondent-appellee.rolly O. Kinnell, Petitioner-appellant, v. Robert Atkins; Attorney General of the State of Kansas,respondents-appellees, 963 F.2d 382 (10th Cir. 1992)Annotate this Case
May 7, 1992
Before LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL, Circuit Judge.
EBEL, Circuit Judge.
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. Therefore, the case is ordered submitted without oral argument.
In these companion cases, Rolly O. Kinnell, the petitioner-appellant, alleges that the judgment for his 1977 conviction for aggravated battery is void.1 The district court denied his motion for leave to proceed in forma pauperis and declined to issue the requisite certificate of probable cause. For the reasons stated in the district court's orders of September 26, 1991 and October 4, 1991, we hereby do the same. Accordingly, this case is dismissed.
In its order below, the district court expressed frustration about the influx of motions attacking Kinnell's conviction, and the district court precluded Kinnell "from filing any further motions in the present action that contain the same or similar arguments as those set forth in any other pleadings previously submitted in this action." Sept. 26, 1991 Order at 2. Furthermore, the district court found Kinnell's allegations on appeal to be "conclusional and frivolous" and his appeal to be "legally frivolous and ... not taken in good faith." Oct. 4, 1991 Order at 1-2. We agree.
For the reasons set forth above and in the district court's orders, this appeal is DISMISSED under 28 U.S.C. § 1915(d).
The mandate shall issue forthwith.
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
In his motion for leave to proceed in forma pauperis, Kinnell also alleges that he was discriminated against on the basis of race in violation of 42 U.S.C. § 1981. We decline to consider this contention because it was not raised below