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

                            FOR THE TENTH CIRCUIT                              August 31, 2016
                        _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
GREGORY PAUL FRYE,

      Petitioner - Appellant,

v.                                                           No. 16-1101
                                                    (D.C. No. 1:15-CV-01944-LTB)
ANGEL MEDINA, Warden, FMCC;                                    (D. Colo.)
CYNTHIA COFFMAN, Attorney General
of the State of Colorado,

      Respondents - Appellees.
                      _________________________________

           ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

       Gregory Paul Frye is serving a 28-year sentence in a Colorado prison for

second-degree kidnapping and second-degree assault with a deadly weapon. In this, his

second 28 U.S.C. § 2254 action, he seeks leave to proceed on appeal without prepayment

of costs and fees (In Forma Pauperis—IFP) and a certificate of appealability (COA)

permitting him to challenge the dismissal of his habeas petition. He claims the state trial

court wrongly imposed restitution after accepting his guilty plea. We construe his pro se

filings liberally, United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009), but deny a

COA, deny his request to waive prepayment of costs and fees, and dismiss the appeal.

*
       This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Frye’s guilty plea, dated August 20, 2008, contained a stipulated sentence of

consecutive twelve- and sixteen-year terms, as well as an agreement to pay restitution for

all counts of conviction. R. at 22. The prosecution had ninety days to file the restitution

amount, and on November 18, 2008, it timely sought $3,276.86, which the trial court

granted. The prosecution later amended the requested amount to $3,279.86, which the

trial court eventually granted over the objection of Frye’s stand-by attorney. The

Colorado Court of Appeals rejected Frye’s claim that the restitution request was untimely

and affirmed the restitution order. R. at 48-49.

       Meanwhile, Frye filed his first unsuccessful 28 U.S.C. § 2254 federal habeas

petition claiming (among other things) his guilty plea was invalid because it was coerced

by the trial court’s erroneous evidentiary rulings. See Frye v. Clements,

No. 12-cv-00722-RBJ (D. Colo. filed Mar. 22, 2012). The district judge rejected that

claim on the merits and dismissed the entire petition because Frye’s remaining claims

were procedurally barred or not cognizable in a federal habeas proceeding. R. at 134-37,

154. We denied his request for a COA. R. at 256.

       Frye then filed this § 2254 petition challenging the restitution order, which the

district judge concluded was not cognizable—for purposes of federal habeas relief Frye

was not “in custody” as a result of the restitution order. R. at 417-18. But Frye

attempted to add a new wrinkle by asserting the government’s restitution request was a

breach of the plea agreement. That argument, the district judge concluded, only amounts

to an unauthorized second or successive § 2254 claim. See 28 U.S.C. § 2244(b)(3)(A)



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(requiring circuit court authorization for second or successive habeas claims).1 In sum,

the district court lacked jurisdiction to address either of Frye’s arguments. The judge also

denied Frye’s request to proceed on appeal without prepayment of fees, certifying the

appeal would not be taken in good faith. R. at 421. See 28 U.S.C. § 1915(a)(3).

Undeterred, Frye filed a notice of appeal and applied to this court for a COA. He also

renewed his request for IFP status.

       A COA is a jurisdictional prerequisite to appeal the denial of a 28 U.S.C. § 2254

petition, requiring a habeas petitioner to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To obtain a COA, an applicant must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally, to

proceed on appeal without prepayment of costs and fees, Frye “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).

       Frye cannot pass the threshold because his contrived and prolix filings advance no

nonfrivolous arguments. The district court lacked jurisdiction to consider his restitution

arguments because a restitution payment is not the sort of significant restraint on liberty

       1
         Frye denies that his latest § 2254 petition is successive, but if it is he requests us
to authorize it in the interests of justice. Tolerating frivolous filings does not promote
justice.
                                               3
contemplated by 28 U.S.C. § 2254(a); that section authorizes federal courts to exercise

jurisdiction over a habeas application brought by “a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” Id. (emphasis added); see

Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008). Likewise, the

court lacked jurisdiction to consider Frye’s argument that the restitution request breached

the plea agreement—this second or successive § 2254 claim directly challenged his guilty

plea without authorization from this court. Consequently, no reasonable jurist could

debate the district court’s dismissal for lack of jurisdiction.

       We deny a COA, deny Frye’s request to proceed without prepayment of filing

fees, and dismiss the appeal. All filing and docketing fees, $505.00, are due and payable

to the Clerk of the District Court.

                                                           Entered for the Court
                                                           Per Curiam

O’BRIEN, J., dissenting.

       This is a civil matter (habeas) and this request for a COA is frivolous. For that

reason the district judge denied Frye’s request to proceed without prepayment of fees by

certifying that an appeal could not be taken in good faith. 28 U.S.C. § 1915(a)(3) (“An

appeal may not be taken in forma pauperis if the trial court certifies in writing that it is

not taken in good faith.”). We agree with the district judge—the request to appeal is

frivolous—yet we prematurely consider the merits of Frye’s request. The cart is ahead of

the horse.


                                               4
        So as not to foreclose appellate review of arguably meritorious appeals when an

appellant lacks the present ability to pay filing and docketing fees, Congress has

permitted appeals to be taken without prepayment of fees. 28 U.S.C. § 1915(a)(1).

Significantly, frivolous appeals are excluded from the grant (presumably to prevent the

promiscuously litigious from wasting courts’ time and resources). Id. § 1915(a)(3).

“Even in 1892, Congress recognized, however, that a litigant whose filing fees and court

costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to

refrain from filing frivolous, malicious, or repetitive lawsuits.” Coleman v. Tollefson,

___ U.S.___, 135 S. Ct. 1759, 1762 (2015) (alteration and internal quotation marks

omitted).

        We should abide all of the statutory provisions rather than a select few. For that

reason, I dissent from the denial of COA. This Court should take no action towards

resolving the merits of the matter under consideration (request for a COA) until all fees

are paid. Frye should be required to pay the filing and docketing fees within 20 days. If

he fails to do so, his appeal should be dismissed for failure to prosecute. 10th Cir. R.

42.1.




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