                        UNITED STATES COURT OF APPEALS
Filed 4/22/96
                                    TENTH CIRCUIT


ROBERT D. GANDY,             )
                             )
     Petitioner-Appellant,   )
                             )
vs.                          )                          No. 96-1016
                             )                      (D. C. No. 95-Z-1148)
ROBERT FURLOUGH, Warden, and )                            (D. Colo.)
THE ATTORNEY GENERAL OF THE )
STATE OF COLORADO,           )
                             )
     Respondents-Appellees.  )



                               ORDER AND JUDGMENT*


Before TACHA, BALDOCK, and BRISCOE.**


       Petitioner Robert D. Gandy, appearing pro se, filed a habeas corpus petition

pursuant to 28 U.S.C. § 2254 in the district court. The district court dismissed the petition

and denied Petitioner a certificate of probable cause for leave to proceed on appeal. This



       *
               This order and judgment is not binding precedent, except under the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.
       **
             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); 10th Cir. R. 34.1.9. The case therefore is ordered
submitted without oral argument.
matter is before the court on Petitioner’s application for a certificate of probable cause

and motion for leave to proceed on appeal in forma pauperis.

       A petitioner convicted of a state crime may appeal a federal district court's denial

of habeas corpus relief only if the district court or the court of appeals grants a certificate

of probable cause. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b). In Barefoot v. Estelle,

463 U.S. 880, 892-93 (1983), the Supreme Court declared that the "primary means of

separating meritorious from frivolous [habeas corpus] appeals should be the decision to

grant or withhold a certificate of probable cause." We will not grant such a certificate

unless Petitioner makes "a substantial showing of the denial of an important federal right

by demonstrating that the issues raised are debatable among jurists, that a court could

resolve the issues differently, or that the questions deserve further proceedings."

Gallagher v. Hannigan, 24 F.3d 68, 68 (10th Cir.1994) (citing Barefoot, 463 U.S. at 893

& n. 4).

       We have reviewed Petitioner's application for a certificate of probable cause and

appellate brief, the magistrate judge's recommended disposition, the district court's order,

and the entire record before us. We conclude that Petitioner has failed to make the

substantial showing of the denial of an important federal right necessary for the issuance

of a certificate of probable cause under 28 U.S.C. § 2253. See Barefoot, 463 U.S. at 893.

Additionally, because Petitioner has failed to advance a rational argument on the law and

facts in support of the issue raised on appeal, we decline to grant him leave to proceed on


                                               2
appeal in forma pauperis. See Coppedge v. United States, 369 U.S. 438, 448 (1962);

28 U.S.C. § 1915. Accordingly, we DENY Petitioner's application for a certificate of

probable cause and motion for leave to proceed in forma pauperis, and DISMISS the

appeal.

                                               Entered for the Court,


                                               Bobby R. Baldock
                                               Circuit Judge




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