                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 13 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    GLENN WAYNE LEE,

                Petitioner-Appellant,

    v.                                                    No. 00-5228
                                                    (D.C. No. 98-CV-127-BU)
    H. N. SCOTT, sued as H. N. “Sonny”                     (N.D. Okla.)
    Scott,

                Respondent-Appellee.


                                ORDER AND JUDGMENT         *




Before SEYMOUR and McKAY , Circuit Judges, and            BRORBY , Senior Circuit
Judge.




         After examining the petitioner’s brief and the 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      This order and judgment is not binding precedent, except under the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.
      Petitioner Glenn Wayne Lee, an Oklahoma state prisoner proceeding pro se,

was convicted by a jury of unlawful possession of a controlled drug with intent to

distribute after former conviction of a felony and unlawful possession of

paraphernalia. He seeks a certificate of appealability (COA) to challenge the

district court’s order denying his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254.   See 28 U.S.C. § 2253 (c)(1)(A). He has also

requested leave to proceed on appeal without prepayment of fees. That request is

granted. Upon consideration of the issues raised, we deny issuance of a COA and

dismiss the appeal.

      Petitioner’s federal habeas petition challenged the state appellate court’s

holding that his successive post-conviction petition was procedurally barred. His

first application for post-conviction relief filed in the state court was granted in

part and denied in part. The state appellate court affirmed. Petitioner attempted

to amend his post-conviction petition, which the state trial court denied on the

merits, but which the state appellate court treated as a successive petition and

dismissed as procedurally barred.

      Petitioner then filed his federal habeas petition claiming the State’s

post-conviction corrective process was inadequate to address the merits of his

claims and the state courts’ dismissal of his successive post-conviction petition

violated his rights to due process and equal protection. Even though petitioner


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had not presented these claims to the state courts, the district court held that the

exhaustion requirement of § 2254(b) was met because requiring petitioner to file

another successive state-court application for post-conviction relief would be

futile. The district court denied habeas relief, holding that petitioner’s claims

were not cognizable in a federal habeas proceeding. Petitioner appeals,

reasserting his challenge to the State’s post-conviction procedures.

      This case is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Before a COA will issue, petitioner must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, he

must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).

      We have carefully reviewed petitioner’s brief and the appellate record. For

substantially the same reasons underlying the district court’s November 3, 2000

order denying habeas relief, we conclude that petitioner has failed to make the

required showing to obtain a COA under § 2253(c)(2).




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      The motion for leave to proceed in forma pauperis is GRANTED. The

application for issuance of a COA is DENIED. The appeal is DISMISSED. The

mandate shall issue forthwith.



                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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