94 F3d 656 Rogers v. Cowley

94 F.3d 656

Donald Lee ROGERS, Petitioner-Appellant,
Jack COWLEY, Respondent-Appellee.

No. 96-6071.
(D.C.No. CIV-95-995-A)

United States Court of Appeals, Tenth Circuit.

Aug. 15, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

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After examining the briefs and 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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.


Mr. Donald L. Rogers filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising five claims as grounds for relief. The petition was referred to a magistrate judge who recommended that the court find Mr. Rogers' first two claims procedurally barred, and all claims, including the first two, insufficient on the merits. After de novo review, the district court adopted the magistrate's report and recommendation in its entirety and denied Mr. Rogers' petition. The district court also denied Mr. Rogers' motion to proceed in forma pauperis and his application for certificate of probable cause. Mr. Rogers appeals.


In order to succeed on his motion for leave to proceed in forma pauperis, Mr. Rogers must show: (1) a financial inability to pay the required filing fees and (2) the existence of a nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438 (1962); DeBardeleben v. Quinlan, 937 F.2d 502 (10th Cir.1991). As noted by the district court, and as shown on the application for in forma pauperis status, Mr. Rogers has $448.23 in his prison savings account. Because Mr. Rogers failed to establish his inability to pay the filing fee, we deny his motion to proceed on appeal without prepayment of costs or fees.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions 10th Cir. R. 36.3