                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                JUL 14 1997
                                        TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 SAMMY JOHN ARCE, SR.,

           Petitioner - Appellant,
 vs.                                                         No. 96-2262
                                                        (D.C. No. CIV-95-788)
 JOHN SHANKS, Warden; ATTORNEY                                 (D.N.M.)
 GENERAL OF THE STATE OF NEW
 MEXICO,

           Respondents - Appellees.


                                     ORDER AND JUDGMENT*


Before BRORBY, EBEL, and KELLY, Circuit Judges.**



       Mr. Arce, an inmate appearing pro-se, appeals from the denial of his habeas corpus

petition, 28 U.S.C. § 2254. The district court, upon recommendation of the magistrate

judge, rejected Mr. Arce’s collateral attack on his state conviction. Mr. Arce contends

that he was denied due process because (a) he was not permitted to collaterally attack a

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       **
         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. 34.1.9. The cause is
therefore ordered submitted without oral argument.
prior conviction used to enhance his sentence for cocaine trafficking, and (b) the evidence

is insufficient. He also contends that he received ineffective assistance of counsel based

upon inadequate impeachment of an informant’s credibility and a failure to present

videotape surveillance.

       The district court denied Mr. Arce leave to proceed on appeal in forma pauperis

based upon a finding “that this appeal is not well-taken.” I R. doc. 21. It also denied him

a certificate of appealability. 28 U.S.C. § 2253(c). Mr. Arce has renewed both requests.

Because the recent mandatory filing fee requirements enacted by the Prison Litigation

Reform Act do not apply to habeas petitions, United States v. Simmonds, 111 F.3d 737,

743-44 (10th Cir. 1997), the standard for granting leave to proceed in forma pauperis on

appeal is whether a petitioner has demonstrated a financial inability to pay the fee and

whether he has made a reasoned argument on the law and the facts is support of the issues

raised on appeal. McIntosh v. United States Parole Comm’n, No. 96-1221, 1997 WL

321272, at *4 (10th Cir. June 13, 1997). For a certificate of appealability, the petitioner

must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct.

746 (1997), which means a demonstration that the issues are debatable among jurists of

reason, a court could resolve the issues differently, or the questions presented are

deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983).




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      We have carefully considered Mr. Arce’s claims, but in light of the record, we

reject them substantially for the reasons contained in the Magistate Judge’s Proposed

Findings and Recommended Disposition. See I R. doc. 15. Mr. Arce’s request for

appointment of counsel contained in his opening brief is DENIED; his Motion for Leave

to Proceed on Appeal Without Prepayment of Costs or Fees is GRANTED; his

Application for a Certificate of Appealability is DENIED; and the appeal is DISMISSED.

      IT IS SO ORDERED.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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