Categories: 7 F.3d ___

7 F.3d 1044

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Roy Lee DUNN, Petitioner-Appellant,
v.
Jack COWLEY, Respondent-Appellee.

No. 93-6057.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1993.

Before TACHA, BALDOCK and KELLY, Circuit Judges.2

ORDER AND JUDGMENT1

KELLY

Petitioner appeals from the dismissal of his habeas corpus petition and denial of a certificate of probable cause. The parties are familiar with the facts and issues presented in this appeal and we will not restate them.

We find no error in the district court’s holding that Mr. Dunn’s second petition for a writ of habeas corpus constituted an abuse of the writ. Petitioner made no showing of cause and prejudice or factual innocence. See McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991); Rodriguez v. Maynard, 948 F.2d 684, 686-87 (10th Cir.1991).

We GRANT petitioner’s motion for leave to proceed on appeal in forma pauperis and his application for a certficate of probable cause.

We AFFIRM the dismissal of the petition.

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 therefore is ordered submitted without oral argument

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3