                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 5, 2013
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 JERRY L. MAYS,

       Petitioner - Appellant,
                                                         No. 12-5219
 v.                                           (D.C. No. 12-CV-00520-CVE-PJC)
                                                         (N.D. Okla.)
 TERRY MARTIN, Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Petitioner Jerry L. Mays, an Oklahoma state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s

dismissal of his petition for writ of habeas corpus, 28 U.S.C. § 2254, without

prejudice. Mays v. Martin, 12-cv-00520-CVE-PJC (N.D. Okla. Dec. 12, 2012).

We deny his request and dismiss the appeal.

      On September 17, 2012, Mr. Mays filed a § 2254 petition in the district

court. R. 3–15. On September 27, the court issued a show cause order directing

Mr. Mays to either pay the $5.00 filing fee or file a motion to proceed in forma

pauperis (“IFP”). Id. at 16–18. The court also ordered Mr. Mays to show cause

why the petition should not be dismissed as a second or successive habeas
petition. Id. Although Mr. Mays filed a response, he did not pay the filing fee or

file an IFP motion. Id. at 19–29. The court dismissed the petition for failure to

comply with the court’s order. Id. at 30–32.

      We will only issue a COA if Mr. Mays makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). Where, as here, the petition was dismissed on

procedural grounds, without a merits determination, Mr. Mays must show that

reasonable jurists would find it debatable not only whether the petition states a

valid constitutional claim, but also whether the district court’s procedural ruling

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

      Mr. Mays has made no such showing. We conclude that reasonable jurists

could not debate that the district court properly dismissed the petition on

procedural grounds. In its September 27 order, the district court warned Mr.

Mays that “[f]ailure to comply . . . may result in the dismissal of this action

without prejudice and without further notice.” R. 18. Mr. Mays did not pay the

required fee or file for IFP despite the district court’s order to do so.

      Accordingly, we DENY a COA, DENY IFP status, and DISMISS the

appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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