*This order and judgment is not binding precedent, except under the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 10/23/96

TENTH CIRCUIT

JERRY WAYNE DEAS,

Plaintiff-Appellant, 

v.

WYOMING DEPARTMENT OF

CORRECTIONS STATE 

PENITENTIARY WARDEN, in

his official capacity, aka DUANE

SHILLINGER and ATTORNEY

GENERAL OF THE STATE OF

WYOMING,

Defendants-Appellees. 

No.96-8036

(Dist. Wyoming)

(D.C. No. 95-CV-30)

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges. 

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material
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assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Petitioner Jerry Wayne Deas, appearing pro se, petitioned the district court

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court

dismissed the petition and denied Deas a certificate of probable cause for leave to

proceed on appeal. Deas appeals. This matter is before the court on Deas’s

application for a certificate of probable cause and a motion for leave to proceed

on appeal in forma pauperis.

I.

Deas pleaded guilty to one count of delivery of a controlled substance in

violation of Wyo. Stat. § 35-7-103(a)(I) and was sentenced to a term of not less

than eight years nor more than sixteen years in the Wyoming State Penitentiary. 

Deas never filed a direct appeal of the judgment entered pursuant to his guilty

plea. Eventually, however, he brought a petition for post-conviction relief before

the state district court asserting the following claims: (1) his Fourth Amendment

rights were violated by the search of a package belonging to him; (2) his plea was

involuntary; and (3) his representation was constitutionally defective. The state

court dismissed Deas’s claims, finding that they should have been raised on direct

appeal.
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Deas raised these same issues in his § 2254 petition before the federal

district court. The district court dismissed the petition, finding that Deas’s claims

were procedurally barred and that Deas had failed to demonstrate cause and

prejudice for the procedural default or that a miscarriage of justice would result if

his claims were not considered. The district court denied Deas’s petition for

probable cause and motion to proceed in forma pauperis.

II.

Because Deas is not entitled to a certificate of appealability, this court

dismisses his appeal. Section 102 of the Antiterrorism and Effective Death

Penalty Act of 1996 (the “Act”) requires state habeas petitioners to obtain

certificates of appealability prior to seeking appellate review of final orders in

habeas corpus proceedings. Pub. L. 104-132, 110 Stat. 1214 (codified at 28

U.S.C. § 2253). This court has concluded that the Act’s certificate of

appealability requirement applies retroactively in § 2254 proceedings. Lennox v.

Evans, 87 F.3d 431, 434 (10th Cir. 1996). Accordingly, we proceed to determine

whether Deas is entitled to a certificate of appealability.
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A habeas petitioner is entitled to a certificate of appealability only if the

petitioner has made a “substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2553(c). In Lennox, this court held that the standard for granting a

certificate of appealability under the Act is the standard set out by the Supreme

Court in Barefoot v. Estelle, 463 U.S. 880 (1983). Under the Barefoot standard, a

certificate of appealability will issue only where the petitioner has demonstrated

the issues raised are debatable among jurists of reason, a court could resolve the

issues differently, or the questions presented are deserving of further proceedings.

Id. at 893 n.4.

This court has reviewed the magistrate’s Report and Recommendation, the

district court’s Order, Deas’s brief, and the entire record before us on appeal. We

conclude that Deas has failed to make a “substantial showing of the denial of a

constitutional right” for the reasons set forth in the magistrate’s Report and

Recommendation and the district court’s Order. Accordingly, we DENY Deas a

certificate of appealability and DISMISS his appeal. Furthermore, in light of our

disposition above and because Deas has failed to advance a rational argument on 
1Two circuits have held that the provisions of the newly enacted Prison

Litigation Reform Act (“PLRA”), Pub. L. 104-134, Title VIII, §§ 801-10, 110

Stat. 1321, ----, do not apply to habeas corpus actions because habeas corpus

petitions are criminal rather than civil in nature. United States v. Martin , Nos.

96-2011, 96-2267, 96-2541, 96-2568, 96-8027, 1996 WL 528816, at *2 (7th Cir.

Sept. 4, 1996); Reyes v. Keane , 90 F.3d 676, 678 (2d Cir 1996). Because Deas

filed his notice of appeal on April 23, 1996, three days before the President

signed the PLRA, we decide Deas’s fee status under the prior version of § 1915

and, therefore, need not decide whether the filing fee provisions of the PLRA

apply to habeas corpus petitions. White v. Gregory , 87 F.3d 429, 430 (10th Cir.

1996) (“Our review of the [PLRA] leads us to conclude [that it does] not apply

when . . . the prisoner/appellant filed his notice of appeal before April 26, 1996,

the date President Clinton signed the [PLRA] into law.”).

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the law and facts in support of the issues presented on appeal, we DECLINE to

grant him leave to proceed in forma pauperis. 28 U.S.C. § 1915(d).1

Entered for the Court

Michael R. Murphy

Circuit Judge