                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                   TENTH CIRCUIT                                 June 12, 2012

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
DIMITRIC AUSTIN,

              Petitioner - Appellant,
v.                                                            No. 12-1011
                                                     (D.C. No. 1:11-CV-00633-RBJ)
KEVIN MILYARD; JOHN W. SUTHERS,                                (D. Colo.)
the Attorney General of the State of
Colorado,

              Respondents – Appellees.




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


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Dimitric Austin, a Colorado state prisoner proceeding pro se,1 wants to appeal,

without prepayment of fees, from the district court's denial of his 28 U.S.C. § 2254

habeas petition. He alleges ineffectiveness of trial counsel, improper instructions to the

jury, and improper use of previous convictions. The court concluded he did not make “a

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

Because that decision was not even debatably incorrect, we deny his request for a

       1
        We liberally construe Austin’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
 Certificate of Appealability (COA).

I.   BACKGROUND

        In June 2003, Austin was charged with first-degree assault after an altercation with

 another prisoner in the Arapahoe County Jail. Following his conviction by a jury, the

 court held a combined habitual criminal trial and sentencing hearing. It found Austin to

 be a habitual criminal based on a 1983 conviction in Missouri and two 1980 Ohio

 convictions and sentenced him to 64 years imprisonment with the Colorado Department

 of Corrections. In an unpublished decision,2 the Colorado Court of Appeals (CCA)

 affirmed Austin’s conviction and sentence in spite of concluding the trial court erred in

 instructing the jury on the provocation exception to the Colorado law of self-defense—

 the instruction did not amount to plain error. It rejected his remaining issues.

        The Colorado Supreme Court denied Austin’s petition for review. Austin then

 filed an application for post-conviction relief alleging numerous claims of ineffective

 assistance of counsel. His application was denied, and he again appealed. Concluding

 his ineffective assistance claims did not meet the Strickland 3 standard, the CCA affirmed

 the denial of post-conviction relief on September 16, 2010. Austin’s confrontation claim,

 which was based on the trial court’s consideration of affidavits from judges and attorneys


        2
         Three of the issues raised on appeal were also raised in Austin’s appeal of
 another conviction in People v. Austin, No. 04CA0713 (Colo. App. Oct. 27, 2007)
 (unpublished) (reversing second-degree burglary and misdemeanor theft convictions).
 There, the court affirmed the use of his prior Missouri conviction for the purpose of
 finding him a habitual criminal. In the present case, the CCA adopted its previous ruling
 in upholding the same challenge.
        3
            Strickland v. Washington, 466 U.S. 668 (1984).

                                             -2-
involved in his previous convictions, was not raised in post-conviction proceedings at the

trial court level. Accordingly, the CCA concluded it was procedurally barred. The CCA

also addressed Austin’s ineffective assistance claim (failing to challenge all three

predicate convictions underpinning the habitual criminal count) and concluded it failed

because the underlying issue had no merit.

       Following the Colorado Supreme Court’s denial of Austin’s petition for review, he

filed this § 2254 petition. The magistrate judge instructed the State to file a pre-answer

response addressing timeliness and exhaustion. As a result, the court determined Austin

failed to exhaust one claim and another was denied by the Colorado court on an

independent and adequate state procedural ground. Because the Colorado courts would

find the unexhausted claim procedurally barred if Austin were to return to state court, and

Austin failed to show why his default should be excused, the district court dismissed both

claims as procedurally barred.

       In a separate order, the court’s 28-page analysis carefully considered each

remaining claim and concluded the CCA’s denial of Austin’s claims was not contrary to

or an unreasonable application of existing Supreme Court precedent. See 28 U.S.C. §

2254(d). It declined to issue a COA because Austin had not “made a substantial showing

of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). He filed a notice of

appeal, a request for a COA, and a motion to proceed without prepayment of fees, with

this Court.




                                             -3-
II.        DISCUSSION

      A.     Certificate of Appealability

             A COA is a jurisdictional prerequisite to our review of a petition for a writ of

      habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

      “only if the applicant has made a substantial showing of the denial of a constitutional

      right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate

      “that reasonable jurists could debate whether (or, for that matter, agree that) 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) (quotation marks omitted). In evaluating whether an applicant has

      satisfied this burden, we undertake “a preliminary, though not definitive, consideration of

      the [legal] framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

             A state prisoner seeking a federal writ of habeas corpus “must show that the state

      court’s ruling on the claim being presented in federal court was so lacking in justification

      that there was an error well understood and comprehended in existing law beyond any

      possibility for fair-minded disagreement.” Harrington v. Richter, 562 U.S. ---, 131 S. Ct.

      770, 786-87 (2011); Bobby v. Dixon, --- U.S. ---, 132 S. Ct. 26, 27 ( 2011). Austin failed

      to make that showing. In cogent orders the district court thoroughly and correctly

      addressed and resolved each of the issues raised. Because no jurist of reason could

      reasonably debate the correctness of the district court’s decision, we DENY Austin’s

      request for a COA and DISMISS this matter.




                                                  -4-
B.     Proceeding on appeal without prepayment of fees, 28 U.S.C. § 1915(a).

       To proceed on appeal without prepayment of fees (in forma pauperis—ifp) “an

appellant 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 argument “is frivolous where it lacks an arguable basis either in law or in

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (describing when a complaint is

frivolous). So is an appeal. We have reviewed Austin’s ifp motion, his opening brief,

and the district court record. Because he has not presented a reasoned, non-frivolous

argument in support of the issues he seeks to present on appeal, we deny his motion.

Austin must immediately pay the full amount of filing and docketing fees to the clerk of

the district court.4

       DISMISSED.



                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       4
         Dismissal of an appeal does not relieve a litigant of his obligation to pay the
filing fee in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                            -5-
