                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            August 16, 2005
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 EDWARD WILLIAM ALLEN, JR.,

          Petitioner - Appellant,
                                                           No. 04-6153
 v.                                                     (W.D. Oklahoma)
                                                    (D.Ct. No. 02-CV-1007-L)
 REGINALD HINES, Warden,

          Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, 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.

      Edward Allen, acting pro se, 1 appeals the district court’s decision denying

him habeas relief, see 28 U.S.C. § 2254, from his Oklahoma conviction for first

degree malice aforethought murder. To pursue this appeal, Allen must first obtain


      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(A); F ED . R. A PP .

P. 22(b)(1). We will issue a COA only if Allen makes a "substantial showing of

the denial of a constitutional right." Id. § 2253(c)(2). To make this showing, he

must establish that "reasonable jurists could debate whether (or for that matter,

agree that) the petition should have been resolved [by the district court] in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84

(2000) (quotations omitted). Insofar as the district court dismissed his habeas

petition on procedural grounds, Allen must demonstrate that “jurists of reason

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

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. at 484. A COA is a

jurisdictional pre-requisite to our review. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In reviewing for a COA, we are forbidden from giving full

consideration to the factual or legal bases urged in support of the claims. To the

contrary, we preview the claims and make a general assessment of their merit. Id.

at 336. Although petitioner, in requesting a COA, is not required to prove the

merits of the case, the threshold of proof is higher than good faith or lack of

frivolity. Id. at 338.

      The district court denied Allen’s petition for habeas relief for the reasons


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stated in the thoughtful and thorough thirty-four page report and recommendation

of the magistrate judge. After carefully considering the record and Allen’s

arguments, we conclude he has failed to make a sufficient showing that he is

entitled to a COA on any of his claims for the same reasons set forth by the

magistrate judge and adopted by the district court. Therefore, we DISMISS this

appeal. In addition, all pending petitions and motions are DENIED. 2

      The district court also denied Allen’s request to proceed in forma pauperis

(ifp), finding no nonfrivolous issues and concluding the appeal was not taken in

good faith. See 28 U.S.C. § 1915(a)(3). His pending request to proceed ifp filed

in this Court is DENIED. Allen shall remit the full amount of the filing fee to the

Clerk of the District Court within twenty (20) days of this order.


                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge


      2
        Allen has several pending petitions and motions: May 28, 2004, Petition for Writ
of Mandamus and Request for Emergency Injunctive Relief; June 3, 2004, Amended
Petition for Writ of Mandamus and Request for Emergency Injunctive Relief; June 7,
2004, Second Amended Petition for Writ of Mandamus and Request for Emergency
Injunctive Relief; June 9, 2004, Motion to Supplement Appellant’s [Previous Petitions];
June 30, 2004, Emergency Petition [and Addendum] for Writ of Mandamus; September
24, 2004, Petition for Rehearing En Banc; September 24, 2004, Motion to Inform the
Court; November 1, 2004, Second Motion for Leave of Court to Submit an Amended
Application for a Certificate of Appealability (COA) and Petitioner-Appellant’s Second
Amended Opening Brief; November 12, 2004, Motion to Amend Second Amended
Opening Brief; November 29, 2004, Motion to Correct Material Error(s).

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