                    UNITED STATES COURT OF APPEALS
Filed 12/10/96
                                 TENTH CIRCUIT



 STEVEN JAMES WHITE,

       Petitioner - Appellant,
 v.
                                                          No. 96-3172
 ROBERT D. HANNIGAN and                             (D.C. No. 94-3155-DES)
 ATTORNEY GENERAL OF                                       (D. Kan.)
 KANSAS,

       Respondents - Appellees.


                           ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **


      This matter is before the court on Petitioner Steven White’s application for

a certificate of appealability to appeal the district court’s denial of his 28 U.S.C.




      * This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.

      ** A fter examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
§ 2254 petition for writ of habeas corpus. 1 Because we determine that Petitioner

has failed to demonstrate a substantial showing of a denial of constitutional right,

we deny Petitioner’s application and dismiss the appeal.



                                     DISCUSSION

      Section 102 of the Antiterrorism and Effective Death Penalty Act of 1996

amended 28 U.S.C. § 2253 to provide:

      (c)(1)Unless a circuit justice or judge issues a certificate of
      appealability, an appeal may not be taken to the court of appeals
      from --

               (A) the final order in a habeas corpus proceeding in
               which the detention complained of arises out of process
               issued by a state court; or
               (B) the final order in a proceeding under Section 2255.

      (2) A certificate of appealability may issue under paragraph (1) only
      if the applicant has made a substantial showing of the denial of a
      constitutional right.

      (3) The certificate of appealability under paragraph (1) shall
      indicate which specific issue or issues satisfy the showing required
      by paragraph (2).



      1
          We grant Petitioner’s request to proceed in forma pauperis on appeal,
notwithstanding the district court’s denial of this request. Petitioner should note that
because this appeal was filed after April 26, 1996, the recently enacted Prison Litigation
Reform Act of 1995 (“PLRA”) is applicable. See White v. Gregory, 87 F.3d 429 (10th
Cir.), cert. denied, No. 96-6330, 1996 WL 604229 (U.S. Dec. 2, 1996). Thus, petitioner
will be assessed for his filing fee in accordance with the partial payment plan described
in § 1915(b) of PLRA. See PLRA § 804, 28 U.S.C.A. § 1915(b), Pub. L. No. 104-134,
110 Stat. 1321, 1321-66 to 1321-77 (1996).

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Pub.L. No. 104-132, tit. I, § 102, 110 Stat. 1214 (1996) (to be codified at 28

U.S.C. § 2253(c)). We have held that the provisions of Section 102 are applicable

to all pending cases, regardless of whether the case was brought before April 24,

1996, the date when the Anti-Terrorism Act was signed into law. Lennox v.

Evans, 87 F.3d 431 (10th Cir. 1996).

      In his petition for a writ of habeas corpus, petitioner alleges: (1) the trial

court’s failure to apply Kansas’s newly enacted sentencing guidelines violated the

Equal Protection Clause of the Fourteenth Amendment; (2) the trial court erred in

failing to instruct properly on an intoxication defense; (3) there was insufficient

evidence to support a guilty verdict; (4) he was denied effective assistance of

counsel; (5) the trial court erred in refusing to sever his trial from that of a

co-defendant; and (6) his sentence constituted double jeopardy.

      The district court thoroughly analyzed petitioner’s contentions and denied

his petition for a certificate of appealability. We have reviewed the district

court’s order, petitioner’s brief and application for a certification of appealability,

and the entire record before us. We conclude that petitioner has failed to make a

“substantial showing of the denial of a constitutional right” for substantially the

reasons set forth in the district court’s order. Accordingly, we DENY Petitioner’s




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application for a certificate of appealability and DISMISS the appeal. The

mandate shall issue forthwith.



                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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