Jackson v. Robinson

                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    December 20, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court



D A V ID JA CK SO N ,

       Petitioner-A ppellant,
                                                       No. 06-1216
v.                                                 (District of Colorado)
                                               (D.C. No. 06-CV-00264-ZLW )
G REY SON RO BIN SO N ,

       Respondent-Appellee.




                                     ORDER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Proceeding pro se, David Jackson seeks a certificate of appealability

(“COA”) so he can appeal the district court’s dismissal of the habeas petition he

filed pursuant to 

. See 

(c)(1)(A) (providing

that no appeal may be taken from a final order disposing of a § 2254 petition

unless the petitioner first obtains a COA).

      Jackson initiated this § 2254 action on February 16, 2006, by filing a

document titled “Amended Writ of Habeus [sic] Corpus Ad Test” with the United

States District Court for the District of Colorado. The district court ordered

Jackson to cure deficiencies in the petition. The deficiencies were specifically
noted in the order and Jackson was warned that failure to comply with the order

within thirty days w ould result in the dismissal of the petition. Jackson failed to

cure the deficiencies within the thirty-day period but the court granted Jackson an

additional thirty-day period in a second order, dated M arch 27, 2006. Jackson

thereafter requested blank copies of the form on which he could file an amended

§ 2254 petition. The district court ordered the clerk of the court to mail Jackson

two copies of a form captioned, “Application for a W rit of Habeas Corpus

Pursuant to 

.” Jackson, however, failed to cure the deficiencies

or otherwise comply with the orders and the district court dismissed his § 2254

petition without prejudice.

      To be entitled to a COA, Jackson must make “a substantial showing of the

denial of a constitutional right.” 

(c)(2). Jackson can satisfy

“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.” M iller-El v. Cockrell, 

 (2003). W hen a district court

dismisses a habeas petition on procedural grounds, a COA will only issue when

“jurists of reason would find it debatable w hether the district court was correct in

its procedural ruling.” Slack v. M cDaniel, 

, 484-85 (2000) (holding

that w hen 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 w ould

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find it debatable w hether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). Our review of the

record, including Jackson’s appellate brief and application for a COA,

demonstrates the district court’s dismissal of Jackson’s § 2254 petition is not

deserving of further proceedings or subject to a different resolution on appeal.

Accordingly, we deny Jackson’s request for a COA, deny his motion to proceed

in form a pauperis on appeal, and dismiss this appeal.

                                       Entered for the Court
                                       ELISABETH A. SHUM AKER, Clerk


                                       By
                                               Deputy Clerk




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