UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

CHARLES L. SUMMERS,

Petitioner-Appellant,

v.

RON CHAMPION,

Respondent-Appellee.

Case No. 96-6205

(D.C. CIV-95-1835-A)

(Western District of Oklahoma)

 

ORDER

Filed March 18, 1997

 

Before BRORBY, EBEL, and HENRY, Circuit Judges.

 

Appellant’s petition for rehearing is denied. The attached order and judgment is

substituted for the one previously filed on February 12, 1997. The amended order and

judgment will reissue this date.

The mandate issued February 12, 1997 is recalled. The mandate is reissued.

Entered for the Court

PATRICK FISHER, Clerk

By /s/ 

Deputy Clerk
* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 18 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

CHARLES L. SUMMERS,

Petitioner-Appellant,

v.

RON CHAMPION,

Respondent-Appellee.

Case No. 96-6205

(D.C. CIV-95-1835-A)

(Western District of Oklahoma)

 

ORDER AND JUDGMENT*

 

Before BRORBY, EBEL, and HENRY, Circuit Judges.

 

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); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Pro se petitioner-appellant Charles L. Summers appeals the district court’s order

dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before

the court is Mr. Summers’s motion for leave to proceed on appeal in forma pauperis and
2

his application for a certificate of appealability. Also before the court is Mr. Summers’s

motion for an order directing the appellee to file an answer brief. We assert jurisdiction

under 28 U.S.C. § 1291, and dismiss the appeal. 

Mr. Summers is a prisoner in the Oklahoma Department of Corrections, serving a

life sentence for first degree murder. Mr. Summers brought this action pursuant to 28

U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma

raising three claims for habeas corpus relief: (1) ineffective assistance of appellate

counsel in failing to argue that the information charging him for first degree murder was

fatally defective; (2) ineffective assistance of appellate counsel in failing to challenge the

sufficiency of the evidence; (3) denial of due process resulting from the state trial court’s

denial of his motion to sever the trial of him and his co-defendant. The petition was

referred to a magistrate judge who recommended that the district court deny Mr.

Summers’s petition because Mr. Summers’s first and third claims lacked merit and the

second claim was procedurally barred. After de novo review, the district court adopted

the magistrate’s report and recommendation in its entirety and denied Mr. Summers’s

petition. On Mr. Summers’s motion to alter or amend the judgment, the district court,

liberally construing the petition, also considered and denied a direct challenge to the

sufficiency of the information. The district court subsequently denied Mr. Summers’s

motion for leave to proceed in forma pauperis and his application for a certificate of

appealability. Mr. Summers now appeals.
3

We first address Mr. Summers’s motion for leave to proceed on this appeal in

forma pauperis. In order to succeed on his motion for leave to proceed in forma pauperis,

Mr. Summers must show: (1) a financial inability to pay the required filing fees; and (2)

the existence of a nonfrivolous argument on the law and facts in support of the issues

raised on appeal. See 28 U.S.C. § 1915(a). The certified copy of Mr. Summers’s prison

trust account shows that Mr. Summers had an average monthly balance of $332.56 for the

six months preceding the filing of his notice of appeal. Because Mr. Summers failed to

establish his inability to pay the filing fee, we deny his motion to proceed in forma

pauperis. See 28 U.S.C. § 1915(a)(2), (b)(1). 

We next address Mr. Summers’s application for a certificate of probable cause. 

Section 102 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996--

which was in effect at the time Mr. Summers’s filed his notice of appeal--requires that

state habeas petitioners obtain certificates of appealability prior to seeking appellate

review of final orders in habeas corpus proceedings. Pub. L. No. 104-132, 110 Stat.

1214 (codified at 28 U.S.C. § 2253). Under the AEDPA, a habeas petitioner is entitled to

a certificate of appealability only if the petitioner has made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). This court has held that the

standard for granting a certificate of appealability under the AEDPA is the same as the

standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880 (1983). See

Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, No. 96-6621, 1996 WL
4

665079 (U.S. Jan. 13, 1997). Under the Barefoot standard, a certificate will issue only

where the petitioner has demonstrated that the issues raised are debatable among jurists of

reason, a court could resolve the issues differently, or the questions presented are

deserving of further proceedings. 463 U.S. at 893 n.4.

This court has reviewed the magistrate’s report and recommendation, the district

court’s order, Mr. Summers’s brief and application for a certificate of appealability, and

the entire record before us on appeal. We conclude that Mr. Summers has failed to make

a “substantial showing of the denial of a constitutional right” for the reasons set forth in

the magistrate’s report and recommendation and the district court’s order--both of which

clearly and thoroughly address Mr. Summers’s claims. Thus, we deny Mr. Summers a

certificate of appealability.

For the foregoing reasons, we deny both Mr. Summers’s motion for leave to

proceed in forma pauperis and his application for a certificate of appealability. 

Accordingly, we also deny his motion for an order directing the appellee to file an answer

brief. Appeal dismissed. 

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge