* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and 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.

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 wouldnot be of material-2-

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 sub mitted 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 certificat e of probable cause for leave to proceed on appeal. Deas appeals. This matter is b efore the court on Deas’s application for a certificate of probable cause anda motion for leave to proceed on appeal in forma pauperis

.

I. Deas pleaded guilty to one count of delivery of a c ontrolled substance in violation of Wyo. Stat. § 35-7-103(a)(I) and was se ntenced 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 f or post-conviction relief before the state district court asserting the following cl aims: (1) his Fourth Amendment rights were violated by the search of a package bel onging to him; (2) his plea was involuntary; and (3) his representation was constitutionally defective. The state court dismissed Deas’s claims, finding that they sh ould have been raised on direct appeal.-3-

Deas raised these same issues in his § 2254 petitio n before the federal district court. The district court dismissed the p etition, finding that Deas’s claims were procedurally barred and that Deas had failed t o demonstrate cause and prejudice for the procedural default or that a misc arriage of justice would result if his claims were not considered. The district courtdenied Deas’s petition for probable cause and motion to proceed in forma pauperis

.

II. Because Deas is not entitled to a certificate of ap pealability, this court dismisses his appeal. Section 102 of the Antiterro rism and Effective Death Penalty Act of 1996 (the “Act”) requires state habe as petitioners to obtain certificates of appealability prior to seeking appe llate review of final orders in habeas corpus proceedings. Pub. L. 104-132, 110 St at. 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 appeal ability.-4-

A habeas petitioner is entitled to a certificate of appealability only if the petitioner has made a “substantial showing of the d enial 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 s tandard set out by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880 (1983). Under the Barefootstandard, a certificate of appealability will issue only where the petitioner has demonstrated the issues raised are debatable among jurists of re ason, 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 andRecommendation, the district court’s Order, Deas’s brief, and the entir e record before us on appeal. We conclude that Deas has failed to make a “substantia l 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. Acc ordingly, we DENYDeas 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 on1 Two circuits have held that the provisions of the n ewly enacted Prison

Litigation Reform Act (“PLRA”), Pub. L. 104-134, Ti tle VIII, §§ 801-10, 110 Stat. 1321, ----, do not apply to habeas corpus act ions 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 conclu de [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 l aw.”). -5- the law and facts in support of the issues presente d 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