                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JUL 27 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 PAUL C. ALBERTS,

               Petitioner - Appellant,                      No. 98-8002
          v.                                               (D. Wyoming)
 DUANE SHILLINGER, Warden of the                      (D.C. No. 93-CV-230)
 Wyoming State Penitentiary;
 WYOMING ATTORNEY GENERAL,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, 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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent, except under the doctrines of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.
      Paul C. Alberts, a state prisoner, filed a petition pursuant to 28 U.S.C.

§ 2254 in August 1993. The district court denied Alberts’ petition on the merits,

and Alberts appeals. We construe his notice of appeal as an application for a

certificate of probable cause. 1

      Alberts is not entitled to a certificate of probable cause unless he can make

a substantial showing of the denial of a federal right. See Lozada v. Deeds, 498

U.S. 430, 431-32 (1991); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983),

overruled in part on other grounds by Lindh v. Murphy, 117 S. Ct. 2059 (1997).

Having reviewed the district court’s Orders of March 4, 1996 and January 14,

1998, as well as the appellate briefs and record on appeal, we conclude that there

is no error in the district court’s decisions. Therefore, for substantially the

reasons stated by the district court, we conclude that Mr. Alberts has failed to

make a substantial showing of the denial of a federal right.




      1
        Because Alberts filed his habeas petition before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the AEDPA’s
requirements do not apply to this appeal. See United States v. Kunzman, 125 F.3d 1363,
1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). Instead, we apply the
pre-AEDPA requirements and construe his notice of appeal as a request for a certificate
of probable cause. See Hernandez v. Starbuck, 69 F.3d 1089, 1090 n.1 (10th Cir. 1995);
Fed. R. App. P. 22(b) (prior to enactment of the AEDPA).

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       Accordingly, we DENY Alberts a certificate of probable cause, and

DISMISS the appeal. 2


       2
        Although we dispose of this appeal on other grounds, there are good reasons to
believe that Mr. Alberts’ petition is successive or abusive, or both. Since his conviction
in 1981 of aggravated robbery, assault, child stealing, and felony murder, Alberts has
spent the last seventeen years litigating in various forums. Our inquiries at the clerk’s
office reveal that he has previously filed at least one petition pursuant to 28 U.S.C.
§ 2254. This earlier petition, which challenged, inter alia, the pretrial identification
procedures, was ultimately denied on the merits. See Alberts v. Shillinger, No. C85-
0328B (D. Wyo. May 1, 1986). On appeal, this court denied Mr. Alberts a certificate of
probable cause. Alberts v. Shillinger, No. 86-1806 (10th Cir. Sept. 11, 1986). Seven
years later, Alberts filed the instant petition, which the district court also denied on the
merits. In this petition, Alberts again challenges the pretrial identification procedures; he
also raises several new issues.

        Under Rule 9(b) of the Rules Governing Section 2254 Proceedings, a judge may
dismiss a second or successive petition if “it fails to allege new or different grounds for
relief and the prior determination was on the merits or, if new and different grounds are
alleged, the judge finds that the failure . . . to assert those grounds in a prior petition
constituted an abuse of the writ.” See also 28 U.S.C. § 2244. A review of the limited
record provided to this court reveals that Alberts’ argument regarding the pretrial
identification procedures may be sufficiently similar to arguments raised in his prior
§ 2254 petition to bar review of that claim in a successive petition. See Sanders v. United
States, 373 U.S. 1, 15 (1963); Andrews v. Deland, 943 F.2d 1162, 1171-72 (10th Cir.
1991). In addition, the remaining claims which Mr. Alberts raises here, but which he did
not raise in his earlier petition, may constitute an abuse of the writ. See McCleskey v.
Zant, 499 U.S. 467, 492-94 (1991); United States v. Richards, 5 F.3d 1369, 1370 (10th
Cir. 1993).

       Inexplicably, neither the government nor the district court addressed this issue.
We recognize that the government bears the burden of pleading abuse of the writ. See
McCleskey, 499 U.S. at 477. Nevertheless, the district court could have raised the issue
sua sponte, as long as it also gave Alberts notice and an adequate opportunity to respond.
See Williams v. Whitley, 994 F.2d 226, 231-32 (5th Cir. 1993); United States v. Fallon,
992 F.2d 212, 213 (8th Cir. 1993); see also Harris v. Champion, 48 F.3d 1127, 1132 n.4
(10th Cir. 1995); cf. Hardiman v. Reynolds, 971 F.2d 500, 502-03 (10th Cir. 1992)
                                                                              (continued...)

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                                         ENTERED FOR THE COURT



                                         Stephen H. Anderson
                                         Circuit Judge




      2
        (...continued)
(concluding federal courts possess the power to raise nonjurisdictional matters sua sponte
in a habeas corpus proceeding because these doctrines implicate values “that transcend
the concerns of the parties to an action”).

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