James W. Manners, Petitioner-appellant v. Robert Furlong, Gale Norton, Attorney General of the Stateof Colorado, Respondents-appellees, 72 F.3d 138 (10th Cir. 1995)

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US Court of Appeals for the Tenth Circuit - 72 F.3d 138 (10th Cir. 1995) Dec. 15, 1995

ORDER AND JUDGMENT1 

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.2 


Bobby R. Baldock Circuit Judge

Petitioner James W. Manners filed the instant pro se habeas corpus petition pursuant to 28 U.S.C. 2254 in the district court. The district court dismissed the petition and denied Petitioner a certificate of probable cause for leave to proceed on appeal. This matter is before the court on Petitioner's application for a certificate of probable cause and motion for leave to proceed on appeal in forma pauperis.

A petitioner convicted of a state crime may appeal a federal district court's denial of habeas corpus relief only if the district court or the court of appeals grants a certificate of probable cause. See 28 U.S.C. 2253; Fed. R. App. P. 22(b). In Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), the Supreme Court 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 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, 68 (10th Cir. 1994) (citing Barefoot, 463 U.S. at 893 & n. 4).

We have reviewed Petitioner's application for a certificate of probable cause and appellate brief, the magistrate judge's recommended disposition, the district court's order, and the entire record before us. We conclude that Petitioner has failed to make the substantial showing of the denial of an important federal right necessary for the issuance of a certificate of probable cause under 28 U.S.C. 2253. See Barefoot, 463 U.S. at 893. Additionally, because Petitioner has failed to advance a rational argument on the law and facts in support of the issue raised on appeal, we decline to grant him leave to proceed on appeal in forma pauperis. See Coppedge v. United States, 369 U.S. 438, 448 (1962); 28 U.S.C.1915. Accordingly, we DENY Petitioner's application for a certificate of probable cause and motion for leave to proceed in forma pauperis, and DISMISS the appeal.

Entered for the Court

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

 2

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 case therefore is ordered submitted without oral argument