Coleman v. Hargett ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RONALD RAY COLEMAN,
Petitioner-Appellant,
v. No. 96-6209
(D.C. No. CIV-96-16-M)
STEVE HARGETT; ATTORNEY (W.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.
After examining petitioner’s brief and the 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 is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
Petitioner seeks review of the district court’s order denying his petition for
habeas relief under 28 U.S.C. § 2254. Before petitioner can proceed on appeal,
however, he must secure a certificate of probable cause from this court, pursuant
to 28 U.S.C. § 2253. 1 Based upon our review of the record as a whole, we
conclude that petitioner has failed to make a substantial showing of a denial of
a constitutional right. See Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Lennox
v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997),
overruled in part by United States v. Kunzman, No. 96-1310, 1997 WL 602507,
at *1 n.2 (10th Cir. Oct. 1, 1997).
We, therefore, DENY the application for a certificate of probable cause,
and DISMISS the appeal. Petitioner’s motion for reimbursement of fees is
1
Because petitioner filed his habeas petition before enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214, AEDPA’s certificate of appealability requirements do
not apply to this appeal. See United States v. Kunzman, No. 96-1310, 1997 WL
602507, at *1 n.2 (10th Cir. Oct. 1, 1997). Instead, the pre-AEDPA certificate of
probable cause requirements apply here. Regardless of the label we attach to the
requirements, petitioner’s substantive burden is the same, see Lennox v. Evans,
87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled
in part by Kunzman, 1997 WL 602507, at *1 n.2.
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GRANTED. His motion for leave to proceed on appeal without prepayment of
costs or fees is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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