FILED
United States Court of Appeals
Tenth Circuit
August 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LAWRENCE M. JIRON,
Petitioner - Appellant,
v.
No. 09-1162
(D. Colorado)
JUDGE PATTY SWIFT, Alamosa
(D.C. No. 1:09-CV-00351-ZLW)
County; JOHN W. SUTHERS,
Attorney General of the State of
Colorado,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Appellant, Lawrence M. Jiron, seeks a certificate of appealability (“COA”)
from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254
habeas application. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be
taken from a final order disposing of a § 2254 application unless the petitioner
first obtains a COA).
Jiron filed the instant § 2254 application with the Colorado district court on
February 20, 2009. On February 25th, Jiron was ordered to show cause why the
application should not be dismissed as duplicative of an earlier filed § 2254
application which was currently pending in the same court. Jiron’s response
stated the February 20th application was filed “in support” of the earlier
application. The district court dismissed the §2254 application as duplicative and
denied Jiron a COA.
To be entitled to a COA from this court, Jiron must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the requisite showing, he 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.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quotations omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-
85 (2000) (holding that when a district court dismisses a habeas petition on
procedural grounds, a petitioner is entitled to a COA only if he shows both that
reasonable jurists would find it debatable whether he had stated a valid
constitutional claim and debatable whether the district court’s procedural ruling
was correct).
This court has reviewed Jiron’s application for a COA and appellate brief,
the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes Jiron is not
entitled to a COA. The district court’s resolution of Jiron’s claims is not
-2-
reasonably subject to debate and the claims are not adequate to deserve further
proceedings.
Because Jiron has not “made a substantial showing of the denial of a
constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This
court denies Jiron’s request for a COA and dismisses this appeal. Jiron’s motion
to proceed in forma pauperis on appeal is denied and we remind him that he is
responsible for the immediate payment of any unpaid balance of the appellate
filing fee. All remaining outstanding motions are denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-