FILED

United States Court of Appeals

Tenth Circuit

August 17, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LIONEL KERSH, Vigilance

Committee Leader and Conspiracy

Participant,

Petitioner - Appellant,

v.

WARDEN ROBERT SMELER,

Conspiracy Participant; The Attorney

General of the State of [Colorado],

JOHN WILLIAM SUTHERS,

Respondents - Appellees.

No. 10-1177

(D.C. No. 10-CV-00090-ZLW)

(D. Colo.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, EBEL, and LUCERO, Circuit Judges.

Plaintiff-Appellant Lionel Kersh, a state inmate proceeding pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order dismissing without prejudice his petition for a writ of habeas corpus. Mr.

Kersh has not made the necessary “substantial showing of the denial of a

constitutional right” to obtain a COA. 28 U.S.C. § 2253(c)(2); see Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, we deny a COA and dismiss

the appeal. 

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Mr. Kersh’s second and final amended federal habeas petition appears to

challenge his state convictions on three bases: (1) an “[i]nvisible human robot

conspiracy . . . forced [him] into robbing . . . three small businesses”; (2)

“American conspiracy participants transported [him] from down below on earth to

this outerspace earth planet at the age of 13”; and (3) that everyone in the Denver

city and county courts participated in the “world wide conspiracy plot against

me.” R. 61-62, 67-68. Mr. Kersh submitted his second amended petition in

response to the magistrate judge’s order that he file a legible and double-spaced

petition, in compliance with the district court’s local rules. Id. at 51. The

magistrate also ordered Mr. Kersh to submit an amended petition complying with

Rule 8 of the Federal Rules of Civil Procedure and Rule 4 of the Rules Governing

Section 2254 Cases. Id. at 51-53. Upon review of the second amended petition,

the district court dismissed it without prejudice for failure to comply with the

pleading requirements of Rule 8 and Rule 4. Id. at 68-70. We consider this a

procedural dismissal. See Haro-Arteaga v. United States, 199 F.3d 1195, 1196-98

(10th Cir. 1999). 

We will issue a COA to appeal a procedural ruling only if the petitioner

shows that “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and . . . whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Mr.

Kersh’s COA application and brief give us no reason to question the district

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court’s ruling that his second amended petition did not comply with the relevant

pleading rules. Rather, the COA application raises an entirely new set of

substantive issues, mostly to do with his mental health and competency to stand

trial. Pet. Br. at 2-4. We will not consider claims not presented to the district

court. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004).

We DENY a COA, DENY appellant's motion seeking leave to proceed in

forma pauperis and his request for appointment of counsel, and DISMISS the

appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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