                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 17 2001
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 ROBERT D. KAUTZ,

               Petitioner-Appellant,                    No. 01-1219
          v.                                           (D. Colorado)
 TONY REID, Warden, and                             (D.C. No. 01-Z-305)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

               Respondents-Appellees.


                           ORDER AND JUDGMENT           *




Before HENRY, BRISCOE, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the appellant’s request for decision on the briefs without

oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
      Robert Kautz, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition for a

writ of habeas corpus. He also renews on appeal his motion to proceed in forma

pauperis pursuant to Fed. R. App. P. 24(a)(5). For the reasons stated below, we

deny a COA, deny the request to proceed in forma pauperis, and dismiss the

appeal.

      In early 1988, Mr. Kautz was convicted of first degree assault and was

sentenced to thirty-two years’ imprisonment. He did not file a direct appeal.

After being denied post-conviction relief by the state district court, Mr. Kautz

appealed to the Colorado Court of Appeals and Colorado Supreme Court. His

petition was denied on appeal by both courts.

      On February 21, 2001, Mr. Kautz filed the present petition for federal

habeas relief pursuant to 28 U.S.C. § 2254. His petition asserts that his due

process and equal protection rights and right to be free of illegal search and

seizure were violated. He alleges this violation occurred because the statutes

under which he was convicted were published in the Colorado Revised Statutes

without an enacting clause as required by Article V, Section 18 of the Colorado

Constitution.

      The federal district court, in a well-reasoned order, found that Mr. Kautz’s

argument is without merit. The court determined that the statutes he was


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convicted of violating appear with the required enacting clause in the Colorado

Sessions Laws, and Mr. Kautz does not dispute this fact. Mr. Kautz’s contention

that the Colorado Revised Statutes are the only valid published source of law in

Colorado has no legal basis because the Sessions Laws satisfy the enacting clause

requirement of the Colorado Constitution. See People v. Washington, 969 P.2d

788, 790 (Colo. Ct. App. 1999) (“The Colorado Revised Statutes are the official

compilation of the Session Laws of Colorado, the latter containing the official

publication of the enactments of the General Assembly.”). For these reasons, the

district court denied relief on April 19, 2001 and subsequently denied Mr. Kautz a

COA.

       Because he is proceeding pro se, we construe Mr. Kautz’s allegations

liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). To be

entitled to a COA, Mr. Kautz must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this showing by

demonstrating that the issues he raises are debatable among jurists, that a court

could resolve the issues differently, or that the questions presented deserve

further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

       Mr. Kautz’s argument on appeal primarily contends that the Colorado Court

of Appeals was incorrect in its reasoning and outcome in Washington and

therefore that the issues he raises could be resolved differently or are otherwise


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debatable among jurists. Nothing in the record on appeal explains why this would

be the case, and the reasoning in Washington is sound. Even construing his

allegations liberally, this court must find that Mr. Kautz has not met his burden of

showing the denial of a constitutional right. We therefore conclude that he is not

entitled to federal habeas relief, and his request for a COA is denied.

      Next, we turn to Mr. Kautz’s request to proceed on appeal in forma

pauperis. In order to succeed on his motion to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915(a), Mr. Kautz “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). As already

discussed, Mr. Kautz presents no legal basis for refuting the holding in

Washington. In the absence of any legal reasoning to support his contentions, it

is difficult to characterize Mr. Kautz’s petition as anything other than frivolous.

For that reason, Mr. Kautz’s request to proceed in forma pauperis is denied.

      Accordingly, we DENY Mr. Kautz’s motion for a COA, DENY his renewed

motion to proceed in forma pauperis, and DISMISS his appeal for substantially

the same reasons as the district court.

                                                     Entered for the Court,




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      Robert H. Henry
      Circuit Judge




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