                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 30, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                  TENTH CIRCUIT



 GENE ALLEN,

                 Petitioner-Appellant,                  No. 08-1245
          v.                                         District of Colorado
 JOHN SUTHERS, The Attorney                   (D.C. No. 1:08-CV-00714-ZLW)
 General of the State of Colorado,

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Gene Allen, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Allen has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      On April 8, 2008, Mr. Allen filed a pleading in federal district court in

Colorado, denominated a petition for writ of coram nobis, challenging his


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
conviction in Colorado state court in Criminal Case No. 1993-CR-001593. The

Magistrate Judge construed this pleading as a petition under 28 U.S.C. § 2254 and

instructed Mr. Allen to file an amended application in compliance with Rule 8 of

the Federal Rules of Civil Procedure. The Magistrate Judge also noted that Mr.

Allen appeared not to have exhausted his claims in state court, as required by 28

U.S.C. § 2254(b)(1), that the petition also appeared to be barred by the one-year

statute of limitation set forth in 28 U.S.C. § 2244(d), and that the petition did not

name as defendant the custodian of the facility in which Mr. Allen is incarcerated.

The Magistrate Judge instructed Mr. Allen to address these legal issues in his

amended application.

      In response, Mr. Allen filed an amended application on an approved

application form, which the Magistrate Judge concluded was also out of

compliance. The Magistrate Judge gave him “one last opportunity” to file a

proper application. Instead, Mr. Allen filed a second amended application that

continued to exhibit the deficiencies noted above. The district court dismissed

the application without prejudice for failure to comply with Rule 8 of the Federal

Rules of Civil Procedure and Rule 4 of the Rules Governing Section 2254 Cases.

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

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

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to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      We have reviewed Mr. Allen’s second amended application and agree with

the district court. As the district court found, Mr. Allen’s responses to the

questions on the court-approved form are “either nonresponsive, contradictory, or

unintelligible.” No reasonable jurist would find otherwise or regard the matter as

debatable.

                                    Conclusion

      Accordingly, we DENY Mr. Allen’s request for a COA and DISMISS this

appeal. Petitioner’s motion to proceed in forma pauperis is also DENIED.

                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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