* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 14 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ORLANDO DUDLEY, Petitioner-Appellant,

v. STATE OF KANSAS, Respondent-Appellee. No. 00-3088 (D.C. No. 98-CV-3132) (Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and BRISCOE , 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)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument. Orlando Dudley appeals from the denial of his petit ion for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, and see ks a certificate of appealabilty. We deny his request for the certificate and dismiss his appeal.** The state claims and their dispositions, as set fo rth in Mr. Dudley’s brief,

are as follows. On April 1, 1996, he filed an appl ication for state post-conviction relief that was denied as conclusory. He appealed claiming ineffective assistance of habeas counsel and the appeal was denied. On May 15, 1997, he filed a second state habeas petition that was denied as successive . He filed an appeal but voluntarily withdrew it. On January 6, 1998, he fi led a third state habeas petition claiming ineffective assistance of habeas counsel t hat was denied as successive. His appeal was again voluntarily withdrawn. On Apr il 4, 1998, he filed a fourth state habeas petition directly with the state courtof appeals that was denied as successive.

-2- In 1995 Mr. Dudley pled guilty in state court to in voluntary manslaughter and battery of a law enforcement officer. He subse quently brought numerous claims for post-conviction relief in state courts, which were all denied primarily on state procedural grounds. His appeals were eith er dismissed or voluntarily withdrawn. ** He also went through approximately four public de fenders, at least three of whom he apparently fired. Mr. Dudley eventually filed this action seeking a w rit of habeas corpus. The district court determined the petition was subject to dismissal based on Mr. Dudley’s procedural default in the state courts, an d ordered Mr. Dudley to show cause why his petition should not be dismissed. Inresponse, Mr. Dudley did not dispute his procedural default in state court, but sought to overcome it by claiming the “fundamental miscarriage of justice” e xception to the operation of the procedural bar, contending he is factually inno cent of the crimes. See Kuhlmann v. Wilson , 477 U.S. 436, 454 (1986). The district court den ied the-3-

petition unpon concluding that Mr. Dudley’s respons e contained neither a colorable showing of factual innocence, nor suffici ent cause and prejudice to excuse his procedural defaults. On appeal, Mr. Dudley again asserts his factual inn ocence. He claims that witnesses, arresting officers, and investigators al l lied to implicate him in the crimes. He also contends that statements he made d uring his guilty plea and/or presentence investigation regarding the motive for and circumstances of the homicide were made “in jest”. Finally, Mr. Dudley requests DNA testing and other physical evidence, speculating that it will p rove his innocence. The district court declined to grant Mr. Dudley a c ertificate of appealability and Mr. Dudley renews his application for a certifi cate before this court. Because this appeal was initiated in March of 2000, the rig ht to appeal is “governed by the certificate of appealability (COA) requirements nowfound at 28 U.S.C. § 2253(c).” Slack v. McDaniel , 120 S. Ct. 1595, 1600 (2000). When, as here, the district court denies a habeas petition on proc edural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district cou rt’s order may be taken) if the prisoner shows, at least, that jurist s of reason would find it debatable whether the petition states a valid cl aim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct inits procedural ruling. Id. at 1600-01. The Court held that both showings mus t be made, id . at 1604, and that a court may dispose of an application for habe as relief by resolving “the issue-4-

whose answer is more apparent from the record and arguments,” id . Courts are allowed and encouraged to resolve procedural issues first. Id. Accordingly, we turn to the propriety of the district court’s rulin g that Mr. Dudley’s claims are barred by his failure to show either cause and prej udice for his procedural defaults in state court or factual innocence. Mr. Dudley has not disputed his procedural default, either in district court or on appeal. His showing of factual innocence con sists of numerous conclusory statements to the effect that all relevant evidence was withheld, all witnesses lied, he was prepared to give exculpatory testimony , and his various attorneys betrayed him. Given Mr. Dudley’s guilty plea, thes e sweeping, conclusory, and self-serving arguments do not establish a colorable claim of factual innocence. The district court’s dismissal on procedural ground s is thus neither debatable nor incorrect. Accordingly, Mr. Dudley’s request for a certificate of appealability is
DENIED , and his appeal is DISMISSED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge