*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or 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

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, 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 cause is

therefore ordered submitted without oral argument.

Orlando Dudley appeals from the denial of his petition for writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254, and seeks a certificate of appealabilty. 

We deny his request for the certificate and dismiss his appeal.
** The state claims and their dispositions, as set forth in Mr. Dudley’s brief,

are as follows. On April 1, 1996, he filed an application 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 filed a third state habeas petition

claiming ineffective assistance of habeas counsel that was denied as successive. 

His appeal was again voluntarily withdrawn. On April 4, 1998, he filed a fourth

state habeas petition directly with the state court of appeals that was denied as

successive.

 

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In 1995 Mr. Dudley pled guilty in state court to involuntary manslaughter

and battery of a law enforcement officer. He subsequently brought numerous

claims for post-conviction relief in state courts, which were all denied primarily

on state procedural grounds. His appeals were either dismissed or voluntarily

withdrawn.** He also went through approximately four public defenders, at least

three of whom he apparently fired.

Mr. Dudley eventually filed this action seeking a writ of habeas corpus. The

district court determined the petition was subject to dismissal based on Mr.

Dudley’s procedural default in the state courts, and ordered Mr. Dudley to show

cause why his petition should not be dismissed. In response, Mr. Dudley did not

dispute his procedural default in state court, but sought to overcome it by

claiming the “fundamental miscarriage of justice” exception to the operation of

the procedural bar, contending he is factually innocent of the crimes. See

Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). The district court denied the
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petition unpon concluding that Mr. Dudley’s response contained neither a

colorable showing of factual innocence, nor sufficient cause and prejudice to

excuse his procedural defaults.

On appeal, Mr. Dudley again asserts his factual innocence. He claims that

witnesses, arresting officers, and investigators all lied to implicate him in the

crimes. He also contends that statements he made during 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 prove his innocence.

The district court declined to grant Mr. Dudley a certificate of appealability

and Mr. Dudley renews his application for a certificate before this court. Because

this appeal was initiated in March of 2000, the right to appeal is “governed by the

certificate of appealability (COA) requirements now found 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 procedural grounds

without reaching the prisoner’s underlying constitutional claim, a

COA should issue (and an appeal of the district court’s order may be

taken) if the prisoner shows, at least, that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of

a constitutional right, and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.

Id. at 1600-01. The Court held that both showings must be made, id. at 1604, and

that a court may dispose of an application for habeas relief by resolving “the issue
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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 ruling that Mr. Dudley’s claims are

barred by his failure to show either cause and prejudice 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 consists 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, these sweeping, conclusory, and

self-serving arguments do not establish a colorable claim of factual innocence. 

The district court’s dismissal on procedural grounds 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