                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                   FEB 8 2002
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 CONRAD J. BRAUN,

                Petitioner - Appellant,

           v.                                                 No. 01-3314
                                                      (D. C. No. 01-CV-3011-DES)
 THE STATE OF KANSAS,                                         (D. Kansas)

                Respondent - Appellee.


                               ORDER AND JUDGMENT*


Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

       Pro se petitioner Braun filed a “Petition for Writ of Declaratory Judgment” in the

district court. Mr. Braun challenged the constitutionality of a state restraining order

obtained by his former wife from the Kansas state courts. The district court construed the


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
action as having been filed pursuant to § 2254 and dismissed the action without prejudice

pending conclusion of Mr. Braun’s on-going state challenge to the constitutionality of the

restraining order. After petitioner filed two motions to alter or amend that judgment and a

succeeding judgment, the district court granted a motion for reconsideration and held that

to the extent that Mr. Braun’s request for release was filed pursuant to § 2254 it should be

dismissed without prejudice pending exhaustion of state remedies. The district court also

ruled that to the extent the request for release was characterized as any action other than

habeas corpus, the motion to proceed without prepayment of the filing fee was denied and

the claims were dismissed for nonpayment of the filing fee. The district court denied a

certificate of appealability pursuant to the provisions of 28 U.S.C. § 2253(c)(1) and (2).

       Petitioner now seeks a certificate of appealability (COA) to pursue his appeal of

the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. Determining that Mr. Braun has not met the statutory requirements, we

deny his application and dismiss the appeal.

       To be entitled to a COA, Mr. Braun must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this showing by

establishing 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).


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       We may grant habeas relief only if the state court entered a judgment that

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States; or

       (2) resulted in a decision that was based on an unreasonable determination
       of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

       We agree with the district court that petitioner has failed to make a “substantial

showing of the denial of a constitutional right.” We therefore deny a certificate of

appealability to petitioner in this matter. The petitioner’s motion requesting judicial

notice is denied. The appeal is dismissed.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




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