                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAR 1 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 WILLIAM TYLER,

          Plaintiff-Appellant,
                                                       No. 98-5101
 v.                                                (D.C. No. 96-CV-817)
                                                       (N.D. Okla.)
 JIM OWEN,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      In this 28 U.S.C. § 2254 action, William Tyler claims that the state is

violating his constitutional rights by denying him access to his trial transcript,

which he requested in order to prepare a collateral challenge to his conviction.

He also asks us to hold unconstitutional the Oklahoma Court of Criminal

Appeals’ decision in Tiger v. State, 859 P.2d 1117 (Okla. Crim. App. 1993). The

district court denied Mr. Tyler’s petition because he did not articulate a non-

frivolous ground for collateral review. We deny his motion for a certificate of

appealability and dismiss the appeal.

      On April 29, 1993, Mr. Tyler was convicted of first degree murder and

given a sentence of life without parole, which was later modified on appeal to life

with the possibility of parole. In March 1996, he filed an action in Craig County

District Court requesting a free copy of his transcript. That court denied his

request, and he appealed. The Oklahoma Court of Criminal Appeals affirmed the

district court’s action, noting that Mr. Tyler had not filed an application for post-

conviction relief showing a need for his transcript. He then filed this habeas

action.

      In United States v. MacCollom, 426 U.S. 317 (1976), the Supreme Court

upheld the constitutionality of 28 U.S.C. § 753(f), which permitted free

transcripts to be furnished to only those federal habeas petitioners who

demonstrated their appeal was not frivolous and required a transcript for its


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disposition. Id. at 326. 1 In Ruark v. Gunter, 958 F.2d 318 (10th Cir. 1992), we

extended the reasoning of MacCollum to state habeas petitioners as well, holding

“an indigent § 2254 petitioner does not have a constitutional right to access a free

transcript in order to search for error.” Id. at 319. Tiger is consistent with

MacCollum and Ruark. The court in Tiger denied access to a petitioner who

“ha[d] made no showing of need or a purpose” for her transcripts. 859 P.2d at

1117. Mr. Tyler does not allege nor do we have any indication that Oklahoma

requires habeas petitioners to meet a standard higher than that in MacCollum.

      The other cases cited by Mr. Tyler do not mandate a contrary result.

Several discuss rights of indigent criminal defendants, but do not directly address

whether the state must provide a trial transcript to a petitioner who has not shown

a non-frivolous basis for appeal. See Roberts v. LaVallee, 398 U.S. 40, 41-42

(1967) (striking down a New York statute which required payment for preliminary

hearing transcript); Smith v. Bennett, 365 U.S. 708, 709 (holding unconstitutional

a filing fee requirement that prevented indigent petitioners from filing habeas

corpus actions). Another case invalidated fee provisions that denied transcripts to

indigent petitioners regardless of the merits of their appeals. See Long v. District

Court of Iowa, 385 U.S. 192, 194 & n.1 (1966). Wade v. Wilson, 396 U.S. 282


      1
         That standard applies only to federal habeas petitioners; an indigent
defendant has a right to a transcript of his trial (or comparable substitute) on
direct appeal, see Griffin v. Illinois, 351 U.S. 12, 19-20 (1956).

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(1970), expressly reserved the question of “whether there are circumstances in

which the Constitution requires that a State furnish an indigent state prisoner free

of cost a trial transcript to aid him to prepare a petition for collateral relief.” Id.

at 286. The Tenth Circuit cases Mr. Tyler cites, Reeves v. Little, 120 F.3d 1136,

1138 (10th Cir. 1997), and Harris v. Champion, 15 F.3d 1538, 1557 (10th Cir.

1994), both simply state that in certain circumstances an indigent will have a right

to a free transcript on collateral review, not that the right is absolute. Indeed,

MacCollum and Ruark make clear that the right can be conditioned on a petitioner

showing he needs the transcript to pursue a non-frivolous appeal.

      Because Mr. Tyler has not “made a substantial showing of the denial of a

constitutional right” as required for the issuance of a certificate of appealability,

28 U.S.C. § 2253(c)(2), we DENY his motion for a certificate and DISMISS the

appeal.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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