*This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 5/3/96

TENTH CIRCUIT

CORDELL LEE DAY, JR.,

Petitioner - Appellant, No. 95-6450

v. (W.D. Oklahoma)

R. MICHAEL CODY,

Respondent - Appellee.

(D.C. No. CIV-95-1411-R) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, 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); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.
1See R. Doc. 2 Ex. A (listing Mr. Day’s aliases).

- 2 -

Cordell Lee Day, Jr., a.k.a. Charles Robert Day,1

 an inmate at the Lexington,

Oklahoma, Correctional Center, seeks a certificate of probable cause to appeal the district

court’s dismissal of his most recent habeas corpus petition. See 28 U.S.C. § 2253. To

obtain a certificate of probable cause, a petitioner must make “a substantial showing of

the denial of an important federal right by demonstrating that the issues raised are

debatable among jurists, that a court could resolve the issues differently, or that the

questions deserve further proceedings.” Gallagher v. Hannigan, 24 F.3d 68, 68 (10th Cir.

1994) (citing Barefoot v. Estelle, 463 U.S. 880 (1983)).

We have reviewed Mr. Day’s arguments and find no basis for granting the

certificate in light of the numerous prior federal habeas petitions he has filed, at least six

of which we have addressed on appeal:

Day v. Evans, No. 95-6336, 1996 WL 44225 (10th Cir. Feb. 5, 1996) (denying 

certificate of probable cause).

Day v. Evans, No. 95-6100, 1995 WL 607620 (10th Cir. Oct. 16, 1995) (noting 

that Mr. Day “has previously filed at least three federal petitions for habeas relief,”

and affirming dismissal of petition as successive).

Day v. Reynolds, No. 94-6246, 1994 WL 673052 (10th Cir. Nov. 30, 1994) 

(affirming denial of petition).

Day v. Reynolds, No. 93-6367, 1994 WL 118204 (10th Cir. Apr. 5, 1994) (noting 

district court dismissed petition for abuse of the writ, and affirming on the merits).

Day v. Champion, No. 93-5129, 1993 WL 516444 (10th Cir. Dec. 13, 1993) 

(affirming dismissal of petition for abuse of the writ).
- 3 -

Day v. Saffle, No. 91-6045, 1991 WL 240139 (10th Cir. Nov. 12, 1991) (denying 

certificate of probable cause on sixteen grounds of alleged error).

See also:

R. Doc. 3 attach. (listing thirteen suits, including eight habeas petitions, filed by

Mr. Day in the district court).

Day v. Evans, No. 94-CV-538, Civil Docket at 4, No. 23 (W.D. Okla. Dec. 12,

1994) (summarizing order not to accept future pro se filings from Mr. Day without

leave of court).

R. Doc. 6, at 1 (“[T]he Court finds that, like the numerous habeas petitions filed by

Petitioner in previous cases, the instant Petition contains no constitutional claim of

any legal or factual merit.”).

Mr. Day’s petition is both successive and abusive. See 28 U.S.C. § 2244(b); Rule

9(b), Rules Governing § 2254 Proceedings; Schlup v. Delo, 115 S. Ct. 851, 863 n.34

(1995); Andrews v. Deland, 943 F.2d 1162, 1171 (10th Cir. 1991), cert. denied, 502 U.S.

1110 (1992); Femia v. United States, 47 F.3d 519, 524-25 (2d Cir. 1995) (court may

dismiss subsequent petition sua sponte if record clearly manifests lack of actual

prejudice); United States v. Kress, 944 F.2d 155, 162 (3d Cir. 1991) (“While the doctrine

of res judicata does not strictly apply in the habeas corpus setting, ‘an abusive use of the

writ may be prevented and a prior refusal to discharge on a like application may be made

the authority for a refusal on subsequent ones.’”) (quoting Wells v. United States, 158

F.2d 833, 834 (5th Cir. 1946), cert. denied, 331 U.S. 852 (1947)), cert. denied, 502 U.S.

1092 (1992); R. Doc. 4, at 2-3 (discussing arguments raised previously in Day v.

Reynolds, No. CIV-93-480-R (W.D. Okla.), dismissal aff’d, No. 94-6246, 1994 WL

673052 (10th Cir. Nov. 30, 1994)). See generally Mr. Day’s prior cases, cited supra.
- 4 -

Mr. Day either fails or refuses to recognize that he has had his day in court. He

may not refile every time he concocts a new theory -- or puts a new spin on an old theory

-- to collaterally attack the same state court convictions. Cf. Macklin v. Singletary, 24

F.3d 1307, 1314 (11th Cir. 1994) (“The abuse of the writ doctrine is designed to require a

habeas petitioner to present all of his claims in a single petition.”), cert. denied, 115 S. Ct.

1122 (1995). This “[p]erpetual disrespect for the finality of [his] convictions disparages

the entire criminal justice system.” McClesky v. Zant, 499 U.S. 467, 492 (1991). This

court will not countenance such disrespect, nor will it tolerate abuse of its processes. 

See Demos v. Storrie, 507 U.S. 290 (1993); Johnson v. Cowley, 872 F.2d 342 (10th Cir.

1989).

Accordingly, the request for a certificate of probable cause is DENIED and the

appeal is DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge