F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 1 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
RAYMOND ARTHUR PRICE,
Plaintiff-Appellant, No. 04-1273
v. (D. Colorado)
SUPT. REID, COLORADO (D.C. No. 04-ES-675)
ATTORNEY GENERAL OFFICE,
Defendants-Appellees.
ORDER
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Raymond Price, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas
petition. We deny his request for a COA and dismiss this matter.
Mr. Price filed a habeas petition and a motion for leave to proceed without
prepayment of fees in the U.S. District Court for the District of Colorado. The
magistrate judge found that Mr. Price could pay the $5.00 fee, and ordered him to
do so. On May 26, 2004, the district court overruled Mr. Price’s objections to the
magistrate judge’s order and ordered Mr. Price to pay the $5.00 filing fee within
thirty days if he wished to pursue his claims in the underlying action. On July 9,
2004, the district court determined that Mr. Price failed to pay the $5.00 fee and
failed to respond in any way to the court’s May 26, 2004 order. The district court
dismissed the action without prejudice.
Before this court, Mr. Price seeks a COA so that he may appeal the federal
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28
U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of
a § 2254 habeas petition unless the petitioner first obtains a COA). Mr. Price also
seeks to proceed in forma pauperis (“IFP”) in this action.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). A COA can issue only “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 327. After careful review of the
record, we conclude the requirements for issuance of a COA have not been met.
Mr. Price’s appeal of the district court’s dismissal without prejudice for
failure to pay the $5.00 filing fee is frivolous. The district court gave Mr. Price
an opportunity to respond to its May 26, 2003 order, and Mr. Price failed to do so.
We deny his request for a COA, deny his motion to proceed IFP, order Mr. Price
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to pay immediately any unpaid costs and fee due this court for this appeal, and
dismiss the matter.
Entered for the Court,
Robert H. Henry
Circuit Judge
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