FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JERRY L. MAYS,
Petitioner - Appellant,
No. 12-5219
v. (D.C. No. 12-CV-00520-CVE-PJC)
(N.D. Okla.)
TERRY MARTIN, Warden,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Petitioner Jerry L. Mays, an Oklahoma state prisoner proceeding pro se,
seeks a certificate of appealability (“COA”) to appeal the district court’s
dismissal of his petition for writ of habeas corpus, 28 U.S.C. § 2254, without
prejudice. Mays v. Martin, 12-cv-00520-CVE-PJC (N.D. Okla. Dec. 12, 2012).
We deny his request and dismiss the appeal.
On September 17, 2012, Mr. Mays filed a § 2254 petition in the district
court. R. 3–15. On September 27, the court issued a show cause order directing
Mr. Mays to either pay the $5.00 filing fee or file a motion to proceed in forma
pauperis (“IFP”). Id. at 16–18. The court also ordered Mr. Mays to show cause
why the petition should not be dismissed as a second or successive habeas
petition. Id. Although Mr. Mays filed a response, he did not pay the filing fee or
file an IFP motion. Id. at 19–29. The court dismissed the petition for failure to
comply with the court’s order. Id. at 30–32.
We will only issue a COA if Mr. Mays makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). Where, as here, the petition was dismissed on
procedural grounds, without a merits determination, Mr. Mays must show that
reasonable jurists would find it debatable not only whether the petition states a
valid constitutional claim, but also whether the district court’s procedural ruling
was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mr. Mays has made no such showing. We conclude that reasonable jurists
could not debate that the district court properly dismissed the petition on
procedural grounds. In its September 27 order, the district court warned Mr.
Mays that “[f]ailure to comply . . . may result in the dismissal of this action
without prejudice and without further notice.” R. 18. Mr. Mays did not pay the
required fee or file for IFP despite the district court’s order to do so.
Accordingly, we DENY a COA, DENY IFP status, and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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