* This order and judgment is not binding precedent, except under the doctrines of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

### OCT 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

J.T. GARNER, Petitioner-Appellant,

v. DAVID McKUNE, and the ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents-Appellees. No. 97-3036 (D.C. No. 96-3122-DES) (D. Kan.)

ORDER AND JUDGMENT*
Before ANDERSON, HENRY, 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); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Petitioner J.T. Garner appeals the order of the dis trict court dismissing his habeas petition under 28 U.S.C. § 2254. He request s a certificate of probable-2-

cause to appeal, which we liberally construe as a r equest for a certificate of appealability. See Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996). This court will issue a certificate of appealability whe n a petitioner makes a substantial showing of the denial of a constitutional right. 2 8 U.S.C. § 2253(c)(2). We deny Garner's request and dismiss the appeal. Garner was convicted in state court in 1984 of atte mpted theft, two counts of forgery, and felony murder. His present habeas petition asserts the following grounds for relief: (1) state court's refusal to f urnish transcripts to him; (2) indictment returned by illegally impaneled grand ju ry; (3) perjury at trial; (4) victim was actually killed by his brother; (5) fail ure of biased judge to recuse himself; (6) state court's failure to appoint couns el for post-conviction proceedings; and (7) state court's failure to permi t evidentiary hearings in postconviction proceedings. Garner raised grounds (2), (3), (4), (6), and (7) in a previous § 2254, see Garner v. Davies , 1991 WL 261728 (D. Kan. 1991), aff'd (10th Cir. 1992). As these claims are clearly succ essive, they cannot serve as a basis for our granting a certificate of appealabili ty. Garner seeks transcripts of the grand jury and tria l proceedings, which he asserts will reveal illegal activities during the g rand jury proceedings and that he is innocent of the murder. Garner's claims of ille gal grand jury proceedings and sufficiency of the evidence to support the murder c onviction were addressed in-3-

his previous § 2254 action. Providing Garner with the requested transcripts would only encourage him to reassert claims that have already been addressed and rejected. Therefore, the district court's denial o f Garner's request for transcripts cannot serve as a basis for our granting a certific ate of appealability. Garner complains that Judge Thomas M. Tuggle, a state district judge, was biased and should have recused himself. Garner mai ntains Judge Tuggle entered an order enjoining him from filing further pleading s in the probate of the victim's estate, see Garner v. Tuggle , 1992 WL 189103 (10th Cir. 1992), and that Judge Tuggle failed to acknowledge Garner's appearance ina case where Garner was the plaintiff. Garner also complains that Judge Dale E . Saffels, a senior federal district judge, has "shown prejudice" by "allowing the named respondents to delay or otherwise prolong the proceedings of a constitut ional question of law." We review the denial of a request for recusal for an abuse of discretion. United States v. Burger , 964 F.2d 1064, 1070 (10th Cir. 1992). An affidav it to disqualify a judge must show facts indicating the e xistence of the judge's personal bias and prejudice. United States v. Bray , 546 F.2d 851, 857 (10th Cir. 1976). Garner has not shown that the judges abused their d iscretion in their rulings. Garner filed an application for entry of default, amotion for directed verdict, and a motion for default judgment, which w ere denied by the district court. Garner argues respondents failed to answer or otherwise respond to those-4-

motions by August 31, 1996, the last deadline issue d by the district court, and that the court should have granted his § 2254 petition. However, respondents filed a motion to dismiss on August 5, 1996, and the distri ct court granted that motion on February 7, 1997. Service of a motion to dismiss a lters the period of time for answering. See Fed. R. Civ. P. 12(a)(4). Respondents were not re quired to file an answer, and Garner was not entitled to default j udgment or a directed verdict. The certificate of appealability is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge