F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           OCT 5 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 HAROLD D. HORNSBY,
              Petitioner-Appellant,                      No. 04-5061
 v.                                                (D.C. No. 95-CV-940-B)
 EDWARD L. EVANS, JR.,                                   (N.D. Okla.)
              Respondent-Appellee.


                                      ORDER


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.



      This is a pro se state prisoner appeal from the district court’s denial of

Petitioner’s “Motion Requesting Leave of Court to Re-Open and File Amended

Petition for Writ of Habeas Corpus in 95-CIV-940.” Petitioner’s 28 U.S.C. §

2254 petition was denied by the district court in 1996. After denial of the

petition, Petitioner filed several motions related to his habeas case, which the

district court reviewed in 2001. On August 28, 2001, the district court issued an

order denying the motions because full consideration had been given to

Petitioner’s claims. At that time, Petitioner was advised that his case was closed

and that no further papers would be accepted for filing without leave of the court.

Then, in the motion underlying the current appeal, Petitioner again sought to re-
open his closed habeas case. The district court denied the motion and repeated its

order that no further papers would be accepted for filing without leave of the

court. Petitioner appeals. 1 The district court did not act on the issue of certificate

of appealability; therefore, it is deemed denied. Petitioner then applied to this

court for a certificate of appealability.

      In order for this court to grant a certificate of appealability, Petitioner must

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

2253(c)(2) (2004). To do so, Petitioner 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, 

,

484 (2000) (quotations omitted).

      We have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s brief raises an issue which satisfies our standard for the grant of a

certificate of appealability. For substantially the same reasons as set forth by the

district court in its Order of April 2, 2004, we cannot say “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have


      1
       We note that this case has a long filing history in both the district court
and on appeal. This is Petitioner’s sixth appeal to this court related to the
underlying district court case 95-CV-940.

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been resolved in a different manner.” 

Petitioner’s request for a certificate of appealability and

DISMISS the appeal. Appellant’s motion to file an amended petition for writ of

habeas corpus is DENIED. The motion to proceed in forma pauperis on appeal is

GRANTED.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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