FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        March 28, 2014

                                                                          Elisabeth A. Shumaker
                                   TENTH CIRCUIT                              Clerk of Court



 DAVID T. SUMMERS,

        Petitioner - Appellant,
                                                             No. 13-4169
 v.
                                                     (D.C. No. 2:13-CV-00431-RJS)
 STATE OF UTAH,                                                (D. Utah)

        Respondent - Appellee.



             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, MCKAY, and MATHESON, Circuit Judges.


       David T. Summers sought to file an application for relief under 28 U.S.C. § 2254

in the United States District Court for the District of Utah. His request to proceed in

forma pauperis was denied by the district court on June 19, 2013, because he had

adequate funds to pay the $5.00 filing fee. The court ordered that the application not be

filed unless the fee was paid within 30 days. Mr. Summers sent a letter to the court

complaining of his conditions of confinement but did not pay the fee. Nevertheless, on

August 27, 2013, the court gave him another 30 days to show cause why the case should

not be dismissed for failure to pay. He did not file a timely response, and on October 29,
2013, the court ordered that the application not be filed and closed the case.

Mr. Summers seeks from this court a certificate of appealability (COA) so that he can

appeal the dismissal of his claim. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to

appeal denial of relief under § 2254). We deny his motion to proceed in forma pauperis,

deny the application for a COA, and dismiss the appeal.

       “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 

If the

application was denied on procedural grounds, the applicant faces a double hurdle. Not

only must the applicant make a substantial showing of the denial of a constitutional right,

but he must also show “that jurists of reason would find it debatable . . . whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 

, 484

(2000). “Where a plain procedural bar is present and the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” 

does not argue in his pro se brief that the district court erred by

dismissing his action for failure to pay the filing fee. And the record supports the

dismissal. The court ordered Mr. Summers to pay within 30 days and then gave him an

additional 30 days to show cause before dismissing the action. The only response by

Defendant that was at all relevant was nearly a month past the show-cause deadline and

does not clearly relate to the court’s order because it discusses a $350.00 filing fee paid to
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a federal district court before this case was even opened, not the $5.00 fee ordered in this

case. Thus, “a reasonable jurist could not conclude . . . that the district court erred in

dismissing the petition.” 

the motion to proceed in forma pauperis, DENY the application for a

COA, DENY the motion to have counsel appointed, and DISMISS the appeal.

                                            ENTERED FOR THE COURT


                                            Harris L Hartz
                                            Circuit Judge




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