* This order and judgment is not binding precedent, e xcept under the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

RALPH W. FISHER, JR.,

Petitioner-Appellant,

v. L. L. YOUNG, Warden,

Respondent-Appellee. No. 96-5117 (N. Dist. of Oklahoma) (D.C. No. 95-C-778-B)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT, and MURPHY , Circuit Judges.

Having examined the briefs and the appellate record , this panel determines 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. This c ase is therefore ordered submitted without oral argument.-2-

Petitioner was convicted in Oklahoma on three count s of “Uttering a Forged Instrument,” stemming from his purchase of three pieces of jewelry. See 21 Oklahoma Statutes § 1592. This is an appeal of the dismissal of a petition fo r writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The court belo w dismissed the petition under Rule 9(b) of the Rules Governing § 2254 Cases in th e United States District Courts. The rule states, A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds fo r relief and the prior determination was on the merits or, if new and diff erent grounds are alleged, the judge finds that the failure of the pe titioner to assert those grounds in a prior petition constituted an ab use of the writ. This petition is Mr. Fisher’s third. The district court liberally construed its claim as “new,” even though it closely resembles a claim asserted in a previous petition. The court, however, found that the failu re to include the new claim in a previous petition could not be excused by “cause” and “prejudice.” See McCleskey v. Zant , 499 U.S. 467, 493 (1991) (holding that procedural default excused upon a showing of cause and prejudice). Itdismissed the petition, therefore, as an abuse of the writ. Petitioner’s claim is, essentially, that his due pr ocess rights are being violated because he is incarcerated on three convic tions stemming from a single-3-

criminal act. He asserts that the three jewelry pu rchases in question occurred in close succession at the same store and were thus part of a single offense. The facts, however, are that Mr. Fisher bought thre e different pieces of jewelry with three different forged instruments. M r. Fisher’s assertion that his actions constitute one rather than three crimes was addressed and disposed of in the federal court’s rejection of his first habeas p etition, wherein he framed this same issue as a double jeopardy claim. Id . at 2. There is no question that Mr. Fisher’s actions cons titute three, separate crimes. Title 21, section 1592 of the Oklahoma Statutes makes it a crime to utter a forged instrument. Mr. Fisher uttered three, sep arate forged instruments and, therefore, committed three, separate crimes. See Fisher v. Kaiser, No. 90-1427-T (W.Dist.Okl. 1992) at 14-15. Mr. Fisher argues that his failure to assert this n ew claim in a previous petition is excused by “cause” -- that he was preve nted from knowing about the new claim because of some alleged deficiency in the collection at the prison library. The merits of this argument were not addr essed by the district court because it was clear that even if Mr. Fisher had “c ause,” he would suffer no “prejudice” in the dismissal of the instant petitio n, since its central claim is fallacious. Failure to include a claim in a previo us petition is excused only by1 The “certificate of appealability” section of the A ct, 18 U.S.C. § 2253,

applies retroactively. Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996). Thus, it is applied in this case even though the district court ’s order was filed prior to the date on which the Act took effect.

2 The standard for obtaining a “certificate of appeal ability” under the Act has not changed from the standard for obtaining a “certificate of probable cause,” as was required prior to the Act. Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996). -4- “cause” and“prejudice.” See McCleskey , 499 U.S. at 493. The district court thus held that the instant petition is an abuse of the writ. An abuse of the writ may be overlooked where a peti tioner makes a colorable showing of actual innocence. Herrera v. Collins , 506 U.S. 390, 403-404 (1993). Mr. Fisher made no such showing. This challenge to the district court’s dismissal “m ay not be taken to the court of appeals” unless the petitioner is first is sued a “certificate of appealability.” Antiterrorism and Effective Death Penalty Act of 1996 (the “Act”), Pub.L. No. 104-132, 28 U.S.C. § 2253. 1 A certificate of appealability is granted only if t he petitioner makes a substantial showing of the denial of a constitution al right. 28 U.S.C. § 2253. Such a showing is made if the issues raised by the petition are debatable among jurists of reason, if a court could resolve the iss ues differently, or if the questions presented are deserving of further proceedings. Barefoot v. Estelle , 463 U.S. 880, 893 (1983). 2-5-

As discussed, Mr. Fisher’s claim that his conduct c onstitutes only one criminal act is without merit. His failure to incl ude the claim in a previous writ is thus not excused, as he suffers no prejudice by its dismissal. This is not debatable among jurists of reason. A court could n ot resolve the issues differently. The questions presented do not deserv e further proceedings. Accordingly, we DENY Mr. Fisher’s application for a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge