F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 19, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
MILTON VERAN WILLIAMS,
Petitioner-Appellant, No. 04-6176
v. (D.C. No. 03-CV-169-C)
RON WARD, Director, Department of (W.D. Okla.)
Corrections,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner challenges the
district court’s decision adopting the magistrate judge’s report and
recommendation (“R&R”) denying his habeas petition, which alleged various
*
This order and judgment is not binding precedent, except under the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.
constitutional violations arising out of his state court convictions for grand
larceny, unlawful possession of a controlled substance, and unauthorized use of a
vehicle. After liberally construing the petition, the district court, adopting in full
the magistrate judge’s R&R, 1 denied the request for habeas corpus relief.
Thereafter, Petitioner requested a certificate of appealability and moved to
proceed in forma pauperis on appeal. The district court denied Petitioner’s
requests because “Petitioner [had] not presented a reasoned, nonfrivolous
argument on appeal and [because] the appeal [was not] taken in good faith.” Dist
Ct. Order, May 26, 2004, at 2. Petitioner has renewed those requests with this
court.
In order for this court to grant a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2) (2000). To do so, Petitioner must demonstrate “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
The magistrate judge issued a seventeen-page R&R concluding, after
1
liberally construing the petition, that Petitioner was barred from re-litigating his
Fourth Amendment claims, that certain claims were unexhausted and therefore
procedurally defaulted, and that Petitioner could not demonstrate deficient
attorney performance on his one non-defaulted ineffective assistance of counsel
claim. See Report and Recommendation at 7, 9, 15-16.
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484 (2000) (internal quotations and citation omitted). When a habeas petition is
denied by the district court for procedural reasons, as was partly the case here,
Petitioner must clear the added hurdle of showing “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Id.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition (including the R&R from the magistrate judge), and the record on
appeal. Nothing in the facts, the record on appeal, or Petitioner’s brief raises an
issue which meets our standard for the grant of a certificate of appealability. For
substantially the same reasons as set forth by the magistrate judge in her R&R and
by the district court in its May 26, 2004, Order, we cannot say “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis is
GRANTED. Finally, Petitioner has submitted papers fashioned as a “new
appeal” seeking to overturn the district court’s decision to deny bail and to
consolidate it with this appeal. We have construed Petitioner’s submission as a
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motion and DENY it as moot.
Entered for the Court
Monroe G. McKay
Circuit Judge
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