* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 23 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEAN ALAN MILLER, Petitioner-Appellant,
v. ROBERT D. HANNIGAN, Warden; and the ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents-Appellees. No. 97-3094 (District of Kansas) (D.C. No. 95-3191-DES)

ORDER AND JUDGMENT *
Before BALDOCK , EBEL, and MURPHY , 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. Accor dingly, we honor the parties’ requests and order the cause sub mitted without oral argument.1 Because Miller filed his habeas petition before ena ctment of the

Antiterrorism and Effective Death Penalty Act of 19 96 (“AEDPA”), Pub L. No. 104-132, 110 Stat. 1214, AEDPA’s certificate of app ealability requirements do not apply to this appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2. (10th Cir. 1997). Instead, the pre-AEDPA certificate of probable cause requirements apply here. -2- Dean A. Miller filed the instant 28 U.S.C. § 2254 p etition, the second § 2254 petition that Miller has filed with the dist rict court, on May 1, 1995. The district court dismissed the petition pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District co urts, concluding that it was both successive and abusive. The district court no ted that the issue of ineffective assistance of counsel raised in the instant petitio n had been rejected by the Tenth Circuit in a prior habeas petition. It further not ed that the new twist Miller placed on the claim should have been raised in the first h abeas petition. This case is before the court on Miller’s pro se Application for Certificate of Appealability, which this court construes as a request for a certificate of probable cause. 1 Miller is not entitled to a certificate of probable cause unless he can make a substantial showing of the denial of a constitutional right. See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). Miller can make such a showing by demonstrating that (1) the issues he raise are debatable among jurists, (2) an appellate court could resolve the issues differentl y, or (3) the questions presented deserve further proceedings. Id. Upon a de novo review of Miller’s request for a-3-

certificate of probable cause, his appellate brief, the district court’s Memorandum Opinion and Order, and the entire record on appeal, we conclude that Miller has failed to demonstrate the district court’s resoluti on of this petition as successive and abusive is debatable or reasonably subject to adifferent outcome on appeal. Accordingly, we DENY Miller a certificate of probable cause and DISMISS this appeal. ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge