                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                     April 8, 2016
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 JAIME LUEVANO,

              Petitioner-Appellant,

 v.                                                     No. 15-1230
                                               (D.C. No. 1:14-CV-03493-LTB)
                                                          (D. Colo.)
 HILLARY RODHAM CLINTON, Ex
 Secretary of State; U.S. TEXAS
 JUDGES, High Rank Official, et al.;
 CONGRESS OFFICIALS; TEX. GOV.
 et al.,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.


      Pro se 1 prisoner Jaime Luevano appeals from the dismissal of his

application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district



      *
              This order is not binding precedent except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Luevano appears pro se, we afford his filings a liberal
construction, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but
we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
court dismissed without prejudice Mr. Luevano’s petition pursuant to Federal

Rule of Civil Procedure 41(b) for failure to file his action on the proper court-

approved forms, despite two orders instructing him to do so. Mr. Luevano now

appeals and moves for leave to proceed in forma pauperis (“IFP”) on appeal.

Construing Mr. Luevano’s notice of appeal as a request for a Certificate of

Appealability (“COA”) pursuant to Federal Rule of Appellate Procedure 22(b)(2),

we exercise jurisdiction under 28 U.S.C. § 1291 and deny the COA, dismiss the

appeal, and deny Mr. Luevano’s motion for leave to proceed IFP.

                                          I

      Because Mr. Luevano is a state prisoner proceeding under 28 U.S.C.

§ 2241, he must receive a COA in order to be heard on the merits of his appeal.

See, e.g., Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). Although Mr.

Luevano has not explicitly requested a COA, his notice of appeal constitutes a

request for a COA. See Fed. R. App. P. 22(b)(2).

      “We may grant a COA only if the petitioner makes a ‘substantial showing

of the denial of a constitutional right.’” Milton v. Miller, 812 F.3d 1252, 1263

(10th Cir. 2016) (quoting 28 U.S.C. § 2253(c)(2)). “This requires a ‘showing 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.’” Id.

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

                                          2
      The issue becomes “somewhat more complicated,” however, where the

district court’s denial is predicated on procedural grounds, as here. Slack, 529

U.S. at 484. In that situation, the petitioner actually must shoulder a two-fold

burden: viz., not only must the petitioner demonstrate that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right,” he or she must also show that “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.;

accord Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007); see Coppage v.

McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (“If the application was denied on

procedural grounds, the applicant faces a double hurdle.”).

      The district court dismissed without prejudice Mr. Luevano’s case for

failure to comply with two orders—entered at its behest by the magistrate

judge—to cure filing deficiencies by using court-approved forms. “Pursuant to

Federal Rule of Civil Procedure 41(b), a district court may dismiss an action . . .

if the plaintiff fails ‘to comply with . . . any order of court.’” Olsen v. Mapes,

333 F.3d 1199, 1204 (10th Cir. 2003) (quoting Fed. R. Civ. P. 41(b)); see Brown

v. Beck, 203 F. App’x 907, 909 (10th Cir. 2006) (unpublished) (“The district court

can, under Fed. R. Civ. P. 41(b), dismiss an action because the plaintiff fails to

comply with a court order.” (footnote omitted)). “When dismissing a case

without prejudice, ‘a district court may, without abusing its discretion, enter such

an order without attention to any particular procedures.’” AdvantEdge Bus. Grp.

                                           3
v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009)

(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th

Cir. 2007)).

      Mr. Luevano has not made a sufficient showing to warrant granting a COA.

Nowhere in his brief does he address the fact that the magistrate judge twice

ordered him to file his action on court-approved forms, nor does he respond to the

district court’s subsequent dismissal of his action for his failure to use these

forms. In particular, Mr. Luevano does not attempt to excuse his failure to use

the forms or explain why (for example) it was impossible to do so. Instead, Mr.

Luevano focuses on restating his primary request for relief that he made before

the district court—specifically, that former Secretary of State Hillary Clinton be

required to take a polygraph test.

      Accordingly, we have no difficultly concluding that reasonable jurists

could not debate whether the district court’s dismissal of Mr. Luevano’s petition

under Rule 41(b) was correct. We therefore deny Mr. Luevano’s request for a

COA. We also deny his motion to proceed IFP because Mr. Luevano has not

made a “reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)

(quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)).




                                           4
                                     II

      For the foregoing reasons, we DENY Mr. Luevano’s request for a COA,

DISMISS the appeal, and DENY Mr. Luevano’s motion to proceed IFP on

appeal.



                                          Entered for the Court


                                          JEROME A. HOLMES
                                          Circuit Judge




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