Weatherford v. Sirmons

33 F. App'x 475

Opinion

ORDER AND JUDGMENT

Footnotes

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McKAY, Circuit Judge.

After examining the briefs and the 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.

Mr. Weatherford, pro se, pled guilty to unlawful possession of drugs in a penal institution after former conviction of two felonies. Subsequently, Mr. Weatherford petitioned the district court for habeas corpus relief pursuant to 28 U.S.C. § 2254. The trial court dismissed Mr. Weather-ford’s application as untimely pursuant to 28 U.S.C. § 2244(d). Finding no merit in Mr. Weatherford’s arguments, the district court also declined to grant him a certificate of appealability. Petitioner then applied to this court for a certificate of appealability.

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). 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, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). We have carefully reviewed Mr. Weatherford’s briefs, the district court’s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Appellant’s briefs raises an issue which meets our standards for the grant of a certificate of appealability.

We conclude that for substantially the same reasons as set forth by the district court in its Order of October 31, 2001, 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. The motion to proceed in forma pauperis is GRANTED.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.