                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      February 16, 2011

                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court

NIGEL J. SCOTT,

      Petitioner - Appellant,

v.                                                          No. 10-6176
                                                            (W.D. Okla.)
GREG PROVINCE, Warden,                               (D.C. No. 5:10-CV-00178-D)

      Respondent - Appellee.




                   ORDER DENYING LEAVE TO PROCEED
                     ON APPEAL IN FORMA PAUPERIS,
                 DENYING CERTIFICATE OF APPEALABILITY,
                        AND DISMISSING APPEAL


Before BRISCOE, Chief Circuit Judge, TACHA and O'BRIEN, Circuit Judges.


      Nigel Scott proceeding pro se,1 seeks to appeal from the denial of his 28 U.S.C. §

2254 petition for writ of habeas corpus. Scott was convicted of receiving a stolen credit

card and received a ten-year suspended sentence on April 11, 2007. On March 13, 2008,

his probation was revoked based on the commission of two crimes – selling cocaine to

confidential informants in December 2007 and January 2008. The OCCA affirmed the

revocation of his suspended sentence. He sought habeas relief claiming insufficient



      1
       We liberally construe Scott’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
evidence supported the revocation. The district court, adopting the magistrate judge’s

report and recommendation, determined the OCCA’s conclusion was not contrary to or

an unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254(d). It

denied Scott’s combined request for a certificate of appealability (COA) and to proceed

in forma pauperis (ifp) on appeal.2 See 28 U.S.C. § 2253(c)(2). Scott renews these

requests with this Court. Because Scott has not made the required showing for a COA to

issue, his application for a COA and request to proceed ifp are denied and this matter is

dismissed.

                     I.   CERTIFICATE OF APPEALABILITY

       Scott must obtain a COA in order to appeal a district court's denial of his § 2254

petition. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued only upon “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the

district court denies a habeas petition on the merits, a COA may issue only when the

petitioner demonstrates “that reasonable jurists would find the district court's assessment

of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484,

120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

       In response to Scott’s allegation the evidence was insufficient to revoke his parole,

we recount the evidence against Scott from his probation revocation hearing as reiterated

by the magistrate judge in his report and recommendation:


       2
        Although the district court denied the motion to proceed ifp because Scott had
not submitted his financial information, the district court also held that, even if he had,
the motion to proceed ifp on appeal must be denied because the appeal was not taken in
good faith. See 28 U.S.C. § 1915(a)(1) and (a)(3).

                                            -2-
       [The federal agent] testified that confidential informants twice purchased
       crack cocaine from [Scott]. Prior to both purchases, [the federal agent] and
       other officers met with the confidential informants, searched them and their
       vehicle for United State[s] currency and controlled substances, issued them
       a predetermined sum of United State[s] currency, and outfitted them with
       an audio/video device. [The federal agent] testified that he searched the
       confidential informants while another officer searched the vehicle and no
       controlled substances were discovered during either search. After these
       preliminaries were completed, the confidential informants obtained crack
       cocaine from [Scott] while [the federal agent] monitored the transaction
       using the audio/video device and visual contact when possible. The
       confidential informants and their vehicle were then searched, and crack
       cocaine was seized. Mr. Scott testified that while he did not observe the
       “actual hand to hand” exchange, subsequent review of the audio/video
       evidence, especially Petitioner’s statements during the transaction, led him
       to believe based on his training and experience that the confidential
       informants obtained the crack cocaine from [Scott].

(R. Vol. 1 at 90). Reasonable jurists would not debate the sufficiency of the evidence to

revoke Scott’s parole.

                            II.    IN FORMA PAUPERIS

       To proceed ifp on appeal, Scott “must show a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991) (emphasis added). An appeal on a matter of law is frivolous

where “[none] of the legal points [are] arguable on their merits.” Anders v. California,

386 U.S. 738, 744 (1967). We have reviewed Scott’s motion to proceed ifp and

solicitously construed his briefs in light of the district court record. His arguments are

contrary to settled law and he makes no reasoned argument for modification of that law.

In short, he has not presented reasoned, non-frivolous arguments in support of the issues

raised on appeal.


                                            -3-
      Scott’s application for a COA and his motion to proceed ifp on appeal are

DENIED. He is reminded he must pay the filing and docket fees in full to the clerk of

the district court. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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