                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

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



 ROBERT DAVID DUNN,

                 Plaintiff-Appellant,                     No. 12-6280
          v.                                            (W.D. of Okla.)
 STATE OF OKLAHOMA, and JANET                     (D.C. No. CV-12-00722-F)
 DOWLING, Acting Warden,

                 Defendants-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges. **


      Robert David Dunn, an Oklahoma prisoner proceeding pro se, 1 requests a

certificate of appealability (COA) to appeal the district court’s denial of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also

asks this court for leave to proceed in forma pauperis. For the reasons set forth

      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After 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(G). The cause is therefore ordered submitted without oral argument.
      1
         Because Dunn is proceeding pro se, we construe his pleadings liberally.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner,
404 U.S. 519, 520–21 (1972)).
below, we deny him in forma pauperis status, deny the application for a COA,

and dismiss this matter.

      We may issue a COA only if the petitioner makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court dismisses a § 2254 petition on procedural grounds, a COA is

warranted only if “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

      This appeal is frivolous. Almost two decades after pleading guilty to

charges of rape and sodomy in 1992, Dunn filed his first § 2254 petition, which

we dismissed as time-barred under the Anti-Terrorism and Effective Death

Penalty Act (AEDPA). See Dunn v. Parker, 389 F. App’x 787 (10th Cir. 2010),

cert. denied, 131 S. Ct. 1051, reh’g denied, 131 S. Ct. 1722 (2011). Dunn then

filed in state court in 2012 another habeas petition raising essentially the same

claims. Oklahoma state courts denied the petition because he had failed to

exhaust Oklahoma state administrative remedies and because the petition was

time-barred under Oklahoma law.

      Back in federal court, finding the state-law grounds for the denial of relief

to be independent and adequate, the district court denied Dunn’s petition for a

COA and refused to allow him to proceed with this appeal in forma pauperis

because the appeal was frivolous.

                                         -2-
       Dunn seeks to appeal anyway, which means we are presented with a § 2254

petition that appears to have three fatal defects: (1) we have already adjudicated a

similar petition to be time-barred under AEDPA; (2) the petition is successive and

would be barred under 28 U.S.C. § 2244(b); and (3) the petition was dismissed by

the federal district court on the ground that Oklahoma rules requiring timely

raising and properly exhausting claims provided an independent and adequate

state ground precluding relief. To be sure, neither the state nor the federal district

court addressed these first two grounds for dismissing the petition and relied

solely on the third. Yet Dunn provides nothing more than conclusory arguments

as to why his failure to follow state law should not preclude our grant of a COA,

and we see no reason to disagree or even debate the judgment of the district court.

       We accordingly DENY the petition for a COA and DENY Dunn’s motion to

proceed in forma pauperis. We deny the motions to supplement the record on

appeal and the motion to appoint counsel. We remind Dunn to pay his filing fee

in full.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Circuit Judge




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