                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 7 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


JOHNNY R. COSTA,

             Petitioner-Appellant,
                                                        No. 98-3321
v.                                                   (Dist. of Kansas)
                                                  (D.C. No. 98-3194-DES)
DAVID R. McKUNE,

             Respondent-Appellee.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this 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). The case is

therefore ordered submitted without oral argument.

      This case is before the court on pro se petitioner Johnny R. Costa’s request

for a certificate of appealability (“COA”). Costa seeks a COA so that he can


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and 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.
appeal the district court’s denial of Costa’s 28 U.S.C. § 2254 habeas corpus

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal can be taken

from a “final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a state court” unless the petitioner

first obtains a COA). In his § 2254 habeas petition, Costa claimed that his appeal

bond was excessive in violation of the Eighth Amendment. The district court

concluded that Costa was procedurally barred from raising the claim because

Costa had failed to timely raise the claim in a petition for review by the Kansas

Supreme Court. Furthermore, Costa had failed to demonstrate that his procedural

default was excused by cause and prejudice or that failure to reach the claim

would result in a fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 750 (1991).

      Costa is entitled to a COA only upon “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). This court has reviewed

Costa’s application for a COA and opening brief on appeal, the district court

Order, and the entire record on appeal. That review demonstrates that the district

court’s conclusion that Costa’s Eighth Amendment claim is procedurally barred is

not reasonably debatable, subject to a different outcome on appeal, or deserving

of further proceedings. See Barefoot v. Estelle, 462 U.S. 880, 883 n.4 (1983).

Because Costa has not made a substantial showing of the denial of a


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constitutional right, this court DENIES Costa’s request for a COA and

DISMISSES this appeal.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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