* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. UNITED STATES COURT OF APPEALS Filed 8/16/96 FOR THE TENTH CIRCUIT

RONALD LEROY KENNEDY,

Petitioner-Appellant,

v. JAMES FERGUSON, Acting Warden and THE ATTORNEY GENERAL OF THE STATE OF WYOMING,

Respondents-Appellees. No. 95-8085 (D.C. No. 95-CV-80) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

This matter is before the court on petitioner Ronal d Leroy Kennedy’s application for a certificate of appealability (for merly a certificate of probable cause). On December 19, 1995, petitioner requesteda certificate of probable cause from the district court in connection with th is appeal. The district court docket sheet provided with the record on appeal ind icates that the district court never granted the certificate of probable cause. T herefore, it falls to us to determine whether a certificate of appealability sh ould be granted. Petitioner’s right to appeal the federal district c ourt’s denial of habeas corpus relief is conditioned upon this court granti ng a certificate of appealability.
See 28 U.S.C. § 2253. The law, as recently amended, i nstructs that we may issue such a certificate “only if the applicant has made a substantial showing of the denial of a constitutional right,” and we “indicate which specific issue or issues satisfy [that] showing.” Id. § 2253(c)(2) and (3). Even if we applied the law as it existed at the time this application was made, the standard would be the same: “the standard governing the issuance of a certificate of appealability requires the same showing as that for obtaining a certificate of probable cause [under the former version of the Act].” Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996). Petitioner asserted in his habeas corpus petition that after the Wyoming Supreme Court ordered that he be resentenced to lif e imprisonment on his conviction of first degree murder, see Kennedy v. State , 559 P.2d 1014 (Wyo.-3-

1977), the state district court impermissibly cause d him to serve his life sentence consecutive to, and after the expiration of, his other sentences. The district court analyzed petitioner’s claim and found that this sam e issue was raised in petitioner’s 1980 habeas petition before the Wyomin g federal district court. Alternatively, the district court found that even i f this issue had not previously been raised, petitioner’s claim was abusive because he failed to show cause and prejudice for failing to raise this issue in his 19 80 petition and in a subsequent petition filed in 1989. See Kennedy v. Shillinger , 759 F. Supp. 1554 (D. Wyo. 1991), aff’d , 971 F.2d 558 (10th Cir.), cert. denied , 506 U.S. 1008 (1992).. We have considered the arguments in petitioner’s br ief and have examined the record, including the orders entered on petitio ner’s previous habeas petitions. The district court properly rejected petitioner’s c laim as successive or, alternatively, as abusive. We conclude that petiti oner has failed to make the necessary showing to warrant our issuance of a cert ificate of appealability. Therefore, we deny his application and DISMISS the appeal. All pending motions are DENIED. The mandate shall issue forthwith. Entered for the Court

James K. Logan Circuit Judge