* This order and judgment is not binding precedent, e xcept under the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

### MAR 1 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM TYLER, Plaintiff-Appellant,

v. JIM OWEN, Defendant-Appellee. No. 98-5101 (D.C. No. 96-CV-817) (N.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , 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). T he cause is therefore ordered submitted without oral argument.-2-

In this 28 U.S.C. § 2254 action, William Tyler clai ms that the state is violating his constitutional rights by denying him access to his trial transcript, which he requested in order to prepare a collateral challenge to his conviction. He also asks us to hold unconstitutional the Oklaho ma Court of Criminal Appeals’ decision in Tiger v. State , 859 P.2d 1117 (Okla. Crim. App. 1993). The district court denied Mr. Tyler’s petition because he did not articulate a nonfrivolous ground for collateral review. We deny hi s motion for a certificate of appealability and dismiss the appeal. On April 29, 1993, Mr. Tyler was convicted of firstdegree murder and given a sentence of life without parole, which was later modified on appeal to life with the possibility of parole. In March 1996, he filed an action in Craig County District Court requesting a free copy of his transc ript. That court denied his request, and he appealed. The Oklahoma Court of Cr iminal Appeals affirmed the district court’s action, noting that Mr. Tyler had not filed an application for postconviction relief showing a need for his transcript . He then filed this habeas action.
In United States v. MacCollom , 426 U.S. 317 (1976), the Supreme Court upheld the constitutionality of 28 U.S.C. § 753(f), which permitted free transcripts to be furnished to only those federal h abeas petitioners who demonstrated their appeal was not frivolous and req uired a transcript for its1 That standard applies only to federal habeas peti tioners; an indigent

defendant has a right to a transcript of his trial (or comparable substitute) on direct appeal, see Griffin v. Illinois , 351 U.S. 12, 19-20 (1956). -3- disposition. Id. at 326. 1 In Ruark v. Gunter , 958 F.2d 318 (10th Cir. 1992), we extended the reasoning of MacCollum to state habeas petitioners as well, holding “an indigent § 2254 petitioner does not have a cons titutional right to access a free transcript in order to search for error.” Id. at 319. Tigeris consistent with MacCollum and Ruark . The court in Tiger denied access to a petitioner who “ha[d] made no showing of need or a purpose” for he r transcripts. 859 P.2d at 1117. Mr. Tyler does not allege nor do we have any indication that Oklahoma requires habeas petitioners to meet a standard high er than that in MacCollum. The other cases cited by Mr. Tyler do not mandate acontrary result. Several discuss rights of indigent criminal defendants, but do not directly address whether the state must provide a trial transcript t o a petitioner who has not shown a non-frivolous basis for appeal. See Roberts v. LaVallee , 398 U.S. 40, 41-42 (1967) (striking down a New York statute which requ ired payment for preliminary hearing transcript); Smith v. Bennett , 365 U.S. 708, 709 (holding unconstitutional a filing fee requirement that prevented indigent pe titioners from filing habeas corpus actions). Another case invalidated fee prov isions that denied transcripts to indigent petitioners regardless of the merits of th eir appeals. See Long v. District Court of Iowa , 385 U.S. 192, 194 & n.1 (1966). Wade v. Wilson , 396 U.S. 282-4-

(1970), expressly reserved the question of “whetherthere are circumstances in which the Constitution requires that a State furnis h an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief.” Id. at 286. The Tenth Circuit cases Mr. Tyler cites, Reeves v. Little , 120 F.3d 1136, 1138 (10th Cir. 1997), and Harris v. Champion , 15 F.3d 1538, 1557 (10th Cir. 1994), both simply state that in certain circumstan ces an indigent will have a right to a free transcript on collateral review, not thatthe right is absolute. Indeed, MacCollum and Ruark

make clear that the right can be conditioned on a petitioner showing he needs the transcript to pursue a non-fri volous appeal. Because Mr. Tyler has not “made a substantial showi ng of the denial of a constitutional right” as required for the issuance of a certificate of appealability, 28 U.S.C. § 2253(c)(2), we DENY his motion for a certificate and DISMISS the appeal.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge