F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           August 3, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 WALTER ALMON PAYTON,
              Petitioner-Appellant,                       No. 05-3003
 v.                                                    (03-CV-3460-CM)
 DAVID McKUNE, Warden, Lansing                            (D. Kansas)
 Correctional Facility,
              Respondent-Appellee.


                                      ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.



      After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner was convicted

of rape in Kansas state court. Petitioner’s subsequent appeal to the Supreme

Court of Kansas was denied and his conviction was upheld. Petitioner then filed

a § 2254 petition for habeas corpus relief with the United States District Court

for the District of Kansas. In that petition, Petitioner alleged constitutional error

in his state court conviction.
      The district court dismissed the petition as time barred under AEDPA’s

one-year statute of limitations. The district court also denied Petitioner’s motion

for reconsideration and his renewed motion for reconsideration. Petitioner now

requests a certificate of appealability from this court. The issues he raises on

appeal are identical to those brought before the district court.

      The district court did not act on the issue of a certificate of appealability,

and it is therefore denied pursuant to Fed. R. App. P. 22(b)(2). 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). 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) (internal

citations and quotations omitted). When a habeas petition is denied by the district

court for procedural reasons, as is the case here, Petitioner must clear the added

hurdle of showing “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” 

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 filing raises an issue which meets our standards for the grant of a


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

district court in its December 2, 2004 Memorandum and Order, we cannot say that

it is “debatable whether the district court was correct in its procedural ruling.”

Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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