UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEAN ALAN MILLER,

Petitioner-Appellant,

v.

ROBERT D. HANNIGAN, Warden; and the ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees.

No. 97-3094

(District of Kansas)

(D.C. No. 95-3191-DES)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

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. Accordingly, we honor the parties' requests and order the cause submitted without oral argument.

Dean A. Miller filed the instant 28 U.S.C. § 2254 petition, the second § 2254 petition that Miller has filed with the district court, on May 1, 1995. The district court dismissed the petition pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District courts, concluding that it was both successive and abusive. The district court noted that the issue of ineffective assistance of counsel raised in the instant petition had been rejected by the Tenth Circuit in a prior habeas petition. It further noted that the new twist Miller placed on the claim should have been raised in the first habeas petition. This case is before the court on Miller's pro se Application for Certificate of Appealability, which this court construes as a request for a certificate of probable cause.1

Miller is not entitled to a certificate of probable cause unless he can make a substantial showing of the denial of a constitutional right. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Miller can make such a showing by demonstrating that (1) the issues he raise are debatable among jurists, (2) an appellate court could resolve the issues differently, or (3) the questions presented deserve further proceedings. Id. Upon a de novo review of Miller's request for a certificate of probable cause, his appellate brief, the district court's Memorandum Opinion and Order, and the entire record on appeal, we conclude that Miller has failed to demonstrate the district court's resolution of this petition as successive and abusive is debatable or reasonably subject to a different outcome on appeal. Accordingly, we DENY Miller a certificate of probable cause and DISMISS this appeal.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge