David Lee Hilliard, Petitioner-appellant, v. R. Michael Cody and Attorney General of the State Ofoklahoma, Respondents-appellees, 13 F.3d 405 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

David Lee Hilliard, a state prisoner, filed a petition for writ of habeas corpus in the district court contending he had been denied due process because his state appeal had been unduly delayed. Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). The magistrate judge to whom the case was referred reported to the district court the time for filing of petitioner's brief in the state court of criminal appeals had not expired; therefore, the magistrate concluded, the habeas proceeding was premature. The district court agreed and dismissed the petition. This appeal ensued. The cause is now before us upon petitioner's motion for issuance of a certificate of probable cause, his request therefor having been ignored in the district court.

The only issue raised by petitioner is his contention the petition should have been dismissed without prejudice because he fears a future assertion by the state of an abuse of the writ defense. We believe that concern is misplaced, Rules Governing Section 2254 Cases 9(b) (subsequent petition subject to dismissal only if prior ruling was on the merits).

Petitioner has not made 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. Barefoot v. Estelle, 463 U.S. 880 (1983). The certificate of probable cause is therefore DENIED, and the appeal is DISMISSED. The mandate shall issue forthwith.