We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 1

F.3d 1183, 1187 (10th Cir. 2003).

F I LED

United States Court of Appeals

Tenth Circuit

September 5, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

JOHNNY D. WADKINS,

Petitioner - Appellant,

v.

AL ESTEP; JOHN W. SUTHERS,

Attorney General of the State of

Colorado,

Respondents - Appellees.

No. 06-1005

(D. Colorado)

(D.Ct. No. 04-cv-973-PSF-OES)

____________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPLICATION

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and 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.

Johnny D. Wadkins, a state prisoner proceeding pro se, filed a petition for 1

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Wadkins was convicted of

theft following a jury trial and sentenced as a habitual criminal to life in prison.
 Claim One - due process violation based on incorrect insanity instructions; Claim 2

Two - unknowing and unintelligent waiver of right to testify; Claim Three - due process

violation when emergency room physician was allowed to give an opinion on Wadkins’

sanity; Claim Four - insufficient evidence to support charge of possession of a weapon;

Claim Five - erroneous instructions regarding prior felony convictions; Claim Six - court

erred in not allowing Wadkins to challenge constitutionality of prior convictions; Claims

Seven through Nine - ineffective assistance of counsel.

-2-

After pursuing a direct appeal and state post-conviction relief, Wadkins sought

relief in federal district court. Wadkins raised nine claims in his petition.2

The magistrate judge to whom the matter was referred recommended the

application be denied. The district court adopted the recommendation, denied

Wadkins’ application for writ of habeas corpus, and dismissed the case with

prejudice. Wadkins then filed a notice of appeal and a motion for leave to

proceed on appeal in forma pauperis (ifp). The district court denied a certificate

of appealability (COA), finding Wadkins had not made a substantial showing of

the denial of a constitutional right. The court also denied the motion to proceed

ifp pursuant to Federal Rule of Appellate Procedure 24(a)(3), finding the appeal

was not taken in good faith because Wadkins had not “shown the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” (R. Doc. 37 at 1.) Wadkins has filed with this Court an

application for a COA and for leave to proceed ifp. See 28 U.S.C. §

2253(c)(1)(A); FED. R. APP. P. 22(b)(1), 24(a)(5). We DENY both Wadkins’

application for a COA and his motion for leave to proceed ifp.
-3-

Discussion

A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Wadkins makes

a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84

(2000) (quotations omitted). We review the district court’s factual findings for

clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279,

1282 (10th Cir. 2001). 

The magistrate judge meticulously reviewed each of Wadkins’ claims,

setting forth the factual and procedural basis for each, discussing the resolution of

each issue in the state courts, and analyzing controlling law. The magistrate

judge concluded Wadkins was not entitled to relief under § 2254 and

recommended the application be denied, and the case be dismissed with prejudice.

The district court reviewed the entire record and Wadkins’ objections to the

recommendation, then adopted the recommendation and dismissed the matter. We

need not replicate the thorough analysis; the district court’s order of dismissal is

not reasonably debatable. Slack, 529 U.S. at 484. Wadkins has failed to make a

sufficient showing he is entitled to a COA. Accordingly we DISMISS his
-4-

application.

A prisoner seeking leave from this Court to proceed ifp must show “a

financial inability to pay the required fees, and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)

(citation omitted); DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 

In denying Wadkin’s motion to proceed ifp on appeal, the district court found he

had not met his burden and held the appeal was not taken in good faith, pursuant

to Rule 24(a)(3). After reviewing Wadkins’ contentions and giving weight to the

district court’s decision, we adopt the district court’s finding. See Coppedge v.

United States, 369 U.S. 438, 446 (1962). We DENY Wadkins’ motion to proceed

ifp and order him to remit the full amount of the filing fee within twenty days. 

We remind him of his obligation to pay the filing fee on an appeal that has been

dismissed. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001)

(dismissal of an appeal does not relieve appellant of the obligation to pay the

filing fee in full).

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge