* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### FEB 16 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BOJIDAR GEORGE BAKALOV, Petitioner-Appellant,

v. STATE OF UTAH, Respondent-Appellee. No. 00-4056 (D. Utah) (D.Ct. No. 99-CV-570-K)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and BARRETT , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Bojidar George Bakalov, a state prisoner appearing pro se ,1 Mr. Bakalov did not file an application for a certificate of appealability in the

district court, nor did the district court issue one. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate.

2Although Mr. Bakalov twice used pages from forms labeling his petition as filed under § 2254, he also handwrote in 28 U.S.C. § 2241 as the additional statute under which he sought relief.

-2- appeals the district court decision summarily dismi ssing his petition filed pursuant to 28 U.S.C. § 2254 for failure to file an amended petition. We deny Mr. Bakalov’s request for a certificate of appealability 1 and dismiss his appeal.

Mr. Bakalov filed a roughly 400-page petition initi ating his § 2254 action. 2 The district court reviewed Mr. Bakalov’s petition under Rule 4 of the Rules Governing Section 2254 Cases. In so doing, the dis trict court characterized Mr. Bakalov’s petition as “a lengthy diatribe of irrele vant and convoluted contentions, charges, hyperbole, and exaggerated rhetoric ... no t suitable for consideration,” and in a form that will not “allow the court to res olve the issues or to even determine if the court should proceed under 28 USC. § 2254.” Accordingly, the district court instructed Mr. Bakalov to file an am ended petition by November 30, 1999, in the form required for a petition filed und er the Rules Governing Section 2254 Cases and to “set forth the specific and succi nct basis of the challenge to [his] state conviction.” The district court furthe r instructed Mr. Bakalov that if-3-

the amended petition did not comply with the court’ s order, the district court would dismiss it. On March 1, 2000, the district c ourt issued an order dismissing Mr. Bakalov’s petition, because Mr. Bakalov failed to file an amended petition in compliance with Rule 4.

In support of his appeal, Mr. Bakalov has filed a 1 07-page appeal brief that suffers from many of the same deficiencies associat ed with his petition. Nevertheless, the first, eleven-page section of Mr. Bakalov’s appeal brief seems to most aptly describe his grounds for appeal. In that section, Mr. Bakalov admits the district court could have difficulty reading hi s roughly 400-page petition, but asserts exigent circumstances caused his petition t o be lengthy and unintelligible. These circumstances include the fact he: 1) constru cted his petition in only two days based on his belief the United States Immigrat ion and Naturalization Service might deport him at any time to Bulgaria, and 2) us ed his bed as a table to assemble, cut and glue his petition together. In a ddition, Mr. Bakalov attacks the integrity of the Utah state judges who convicted hi m, raises an allegation that those same judges entered into a Mormon conspiracy with the Utah Governor, United States Senators, the state prosecutor, and a University of Utah professor to convict him, and contests the sufficiency of the DNA evidence supporting his state rape conviction. The remaining 107 pages of his appeal brief consist of-4-

voluminous repetitive and unintelligible statements and allegations concerning his state trial, conviction, confinement, and the indiv iduals prosecuting, adjudicating or otherwise involved in his criminal case. Finall y, on page 84 of his brief, Mr. Bakalov claims he timely mailed an “abridged” petit ion, but claims he does not know what happened to it after mailing it. He atta ches his own affidavit in support.

We review de novo a district court’s summary dismissal of a habeas p etition under Rule 4 of the Rules Governing Section 2254 Ca ses. See O’Bremski v.
Maas s, 915 F.2d 418, 420 (9th Cir. 1990), cert. denied, 498 U.S. 1096 (1991). Rule 4 “enables a district judge to order a summary dismissal of a petition ‘[i]f it plainly appears from the face of the petition and a ny exhibits annexed to it that the petitioner is not entitled to relief in the dis trict court.’” Gutierrez v. Griggs , 695 F.2d 1195, 1198 (9th Cir. 1983) (quoting Rule 4 of the Rules Governing Section 2254 Cases). While we liberally construe pro se petitions, Mr. Bakalov’s petition must comply with the minimal requirements articulated in the federal rules for filing habeas actions. See Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). Compliance with these rules , which include the form required for filing § 2254 p etitions, “promote[s] judicial efficiency in processing pro se litigation [and] .. . assist[s] lay prisoners in3 In preparing his petition, it appears Mr. Bakolav pieced together only a few

selected pages from out-dated § 2254 forms, including pages from a 1985 form.

-5- understanding the types of claims cognizable under the various statutes.” Bradenburg v. Beaman , 632 F.2d 120, 122 (10th Cir. 1980) (per curiam), cert. denied, 450 U.S. 984 (1981). Finally, this court will no t construct legal arguments or theories for a pro se litigant. See Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997).

In this case, Mr. Bakalov’s pro se petition is clearly deficient. While Mr. Bakalov’s petition carries headings identifying it as a § 2254 petition, it does not contain the information required in a § 2254 petiti on, such as a description of any habeas petitions Mr. Bakalov previously filed or an explanation on whether he exhausted his state remedies. 3 See, e.g. , Rules Governing Section 2254 Cases (Appendix, “Model Form for ... § 2254 [Application] ” at ¶¶ 10-11).) In addition, because Mr. Bakalov’s petition contains so many uni ntelligible and conclusory allegations and statements, it is impossible to asc ertain the exact errors of fact or law raised for the court’s disposition. Thus, it i s also difficult to determine whether Mr. Bakalov’s petition seeks habeas relief under § 2254 or § 2241, or if it is actually intended to initiate a civil rights action under 42 U.S.C. § 1983 against various state officials. In sum, even thou gh Mr. Bakalov’s petition is4It is clear Mr. Bakalov knew summary dismissal would result from his failure to

file an amended petition. First, the district court informed Mr. Bakalov of the consequence of not filing an amended petition. Second, in a previous case involving Mr. Bakalov, the district court directed him to file an amended civil rights complaint sufficient to support his claims. See Bakalov v. Stewart, 67 F.3d 312, 1995 WL 564517, at *1 (10th Cir. Sept. 20, 1995). When he failed to do so, the district court summarily dismissed his complaint, and we affirmed the dismissal. See id.

5In dismissing Mr. Bakalov’s petition, the district court did not explicitly state whether it dismissed it with or without prejudice. However, the district court expressly stated the petition was in a form that would not “allow the court to resolve the issues or to -6- voluminous, it fails to provide the information nec essary to inform the district court whether relief is available, or to allow the respondent to file a meaningful and responsive pleading.

In addition, a review of the record shows the distr ict court did not dismiss Mr. Bakalov’s habeas action until four months afterit ordered him to file an amended petition. While Mr. Bakalov attempts to explain his reasons for filing a lengthy and confusing initial petition, he fails to offer any plausible explanation of why he did not file an amended petition, as orde red by the district court, during this four-month period. 4 Mr. Bakalaov’s self-serving and summary contentio n on appeal that his “abridged” petition was lost in the mail is insufficient in this case, especially in light of the fact he failed to produc e a copy of that petition for our or the district court’s examination. For these rea sons, we conclude the district court properly dismissed the petition, which is wit hout prejudice. 5even determine if the court should proceed under 28 U.S.C. § 2254.” A dismissal of a

petition for deficiency of pleading under Rule 4 of the Habeas Corpus Rules Governing § 2254, rather than on the merits, is a dismissal without prejudice and not subject to the gatekeeping restrictions in 28 U.S.C. § 2244. See Dellenbach v. Hanks , 76 F.3d 820, 822-24 (7th Cir.), cert. denied , 519 U.S. 894 (1996); see also Haro-Arteaga v.United States , 199 F.3d 1195, 1196-97 (10th Cir. 1999) (discussing petitions dismissed on grounds other than the merits, including a petition which fails to comply with habeas corpus rules).

6Specifically, for the reasons articulated in this order and for failure to show good cause, we deny Mr. Bakalov’s following motions: 1) “Request for Accepting Additional Affidavit and Materials in This Case,” 2) “Request for Hearing and Discussing the Scandalous Misbehavior of the Utah Law Enforcers and System of Justice,” 3) “Request for Ruling on the Opening Brief Accepted on July 25, 2000 and Ordering Constitutionally Permitable [Sic] Trial,” 4) “Request All Materials Submitted in This Case to be Produced to the Panel Assigned to Dispose of the Case on the Merits,” 5) “...Request for Issuing Habeas Corpus Aad Ordering Evidenciary [Sic] Hearing,” and 6) “Request for -7- As to Mr. Bakalov’s conspiracy and other contention s on appeal, his failure to include these contentions in an amended petition precluded the district court from addressing them. Absent extraordinary circums tances, this court will not consider issues on appeal not first decided in the district court. See United States v. Kovach , 208 F.3d 1215, 1220 (10th Cir. 2000).

In order for this court to grant a certificate of appealability, Mr. Bakalov must make a substantial showing of the denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2). For the reasons stat ed herein, Mr. Bakalov fails to do so. Accordingly, we deny Mr. Bakalov a certific ate of appealability, deny his request to proceed in forma pauperis , deny his pending motions before this court, 6Considering the Material Submitted with the Preceeding [Sic] Case ... in Adjudication

[of] This Case.”

-8- and DISMISS his appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge