Watkins v. Hargett ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 17 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT M. WATKINS,
Petitioner-Appellant,
v. No. 97-7025
(D.C. No. 95-CV-560-S)
STEVE HARGETT; ATTORNEY (E.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
Petitioner seeks review of the district court’s order dismissing his third
petition for habeas relief under 28 U.S.C. § 2254 on the grounds that the filing
constituted an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 493-95
*
This order and judgment is not binding precedent, except under the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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
(1991) (holding that a second or subsequent writ is subject to dismissal unless
petitioner shows cause for the failure to assert claims in first petition and
prejudice resulting from the claimed errors, or a fundamental miscarriage of
justice).
Before petitioner can proceed on appeal, 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 the petitioner has failed to
make a substantial showing of a denial of a constitutional right.
We, therefore, DENY the application for a certificate of probable cause,
and DISMISS the appeal. Petitioner’s motion for release pending appeal is
1
Because petitioner filed his habeas petition in 1995, 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) (to be reported at 125 F.3d 1363).
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, so we will construe his application for a certificate of appealability as an
application for a certificate of probable cause.
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DENIED as moot. All other pending motions are DENIED.
The mandate shall issue forthwith.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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