                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS May 18, 2007

                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court



 W ILLIAM R. TURNER,

          Petitioner-A ppellant,

 v.                                                       No. 06-3135
                                                  (D.C. No. 05-CV-3103-RDR)
 RAY ROBERTS, W arden, El Dorado                            (Kansas)
 Correctional Facility; ATTO RN EY
 GEN ERAL O F KANSAS,

          Respondents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      W illiam R . Turner, a state prisoner appearing pro se, 1 seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition for w rit

of habeas corpus under 28 U.S.C. § 2254. 2 Exercising jurisdiction under 28



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
       W e liberally construe M r. Turner’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998).
      2
          The district court denied M r. Turner’s request for a COA.
U.S.C. § 2253(c)(1), we see no basis for appeal and deny his application for a

COA.

       M r. Turner was convicted in Kansas state court of two counts of aggravated

indecent liberties with a child, one count of criminal sodomy, and two counts of

indecent liberties with a child. He appealed directly to the Kansas Court of

Appeals, contending inter alia that the trial court erred in failing to instruct the

jury it had to agree unanimously on a particular underlying act of taking indecent

liberties and in admitting evidence of his prior crimes and gang affiliation. The

court of appeals affirmed M r. Turner’s convictions for aggravated indecent

liberties with a child and criminal sodomy but reversed his two convictions for

indecent liberties with a child. State v. Turner, 32 P.3d 1241 (Kan. Ct. App.

2001) (unpublished). The K ansas Supreme Court denied review. The state chose

to dismiss the reversed charges rather than retry them.

       M r. Turner then unsuccessfully collaterally challenged his conviction. The

state trial court determined he was not entitled to relief stemming from improper

admission of evidence of prior crimes, drug use, or gang affiliations because these

issues had been decided on direct appeal. It held M r. Turner’s claims of speedy

trial violations, judicial misconduct, prosecutorial misconduct, and sufficiency of

the evidence were procedurally barred because they could have been raised on

direct appeal but were not. The court denied M r. Turner’s ineffectiveness of

counsel claim on the merits. The decision was affirmed by the Kansas Court of

                                          -2-
Appeals, and the Kansas Supreme Court denied review.

      M r. Turner sought relief in federal court asserting five issues. The district

court held M r. Turner’s claims of improper admission of prior crimes,

prosecutorial misconduct, and insufficiency of the evidence were procedurally

barred. It nevertheless addressed the issues on the merits and denied them along

with his claims regarding the trial court’s failure to give a unanimity instruction

and his counsel’s alleged ineffective assistance. In his application to this court,

M r. Turner asserts a denial of due process arising from admission of prior crimes

evidence, prosecutorial misconduct, insufficiency of the evidence, and ineffective

assistance of counsel.

      M r. Turner’s convictions are based on the following facts in the record. In

the summer of 1998, he and his w ife, M arsha W illiamson-Turner, resided with his

wife’s mother. D uring that time, the Turner’s fourteen year-old niece, H.W .,

frequently visited the home and sometimes spent the night. During June 1998,

M r. Turner fondled H .W. Shortly thereafter, the Turners moved into their own

home. H.W . frequented the new residence and often babysat for the Turner’s

young daughter while her aunt was at work. During this time, M r. Turner touched

and fondled H.W . on an almost daily basis.

      In 1999, H.W . was sleeping in the Turner’s bedroom. H.W . laid down in

the bedroom while M r. Turner remained in the living room watching television

with his wife and his daughter. After his wife and child fell asleep in the living

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room, M r. Turner went into the bedroom where H.W . was asleep, removed all of

his clothing, and laid on the bed next to H .W . M r. Turner positioned himself so

that his penis was touching H.W .’s buttocks. He then fondled her breasts and

removed her clothing. M r. Turner proceeded to insert his fingers in H .W .’s

vagina and perform oral sex on her. At some point during the incident, M r.

Turner masturbated. He ejaculated on H.W .’s buttocks. Throughout the event,

H.W . asked M r. Turner to stop. M r. Turner responded by telling H.W . to be quiet

or she would wake up his wife. H.W . took a shower, then awakened her aunt and

told her to go and sleep in the bedroom with M r. Turner. H.W . dozed on the

couch until morning. The next day, H.W . told a friend and her friend’s

grandmother about the incident.

      K.C., a fourteen year-old friend of H .W ., also fell victim to M r. Turner. In

July 1998, M r. Turner, H.W ., and K.C. were at a local sw imming pool. While

there, M r. Turner fondled K .C. atop her sw imming suit. K.C. requested that M r.

Turner stop. He did not and proceeded to put his hand inside K.C.’s swimming

suit and insert his fingers into her vagina. The next day, the three returned to the

pool, and M r. Turner fondled K.C. as he had done the previous day.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).

To vest the court of appeals with jurisdiction, he first must obtain a COA. See id.

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at 336. A COA will issue only if petitioner makes “a substantial showing of the

denial of a constitutional right.” Slack v. M cDaniel, 529 U.S. 473, 483 (2000)

(citing 28 U.S.C. § 2253(c)(2)). To do so, petitioner must show “that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. (citation and quotation marks omitted).

      In determining w hether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of A EDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable among jurists of reason.” Id. Thus, where

petitioner’s federal habeas claims w ere adjudicated on the merits in state court,

we will grant an application for a COA only where the state court decision was

debatably “‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court . . .’ or was ‘based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d

935, 936-37 (10th Cir. 2004). “If the claim was not heard on the merits by the

state courts, and the federal district court made its own determination in the first

instance, we review the district court's conclusions of law de novo and its findings

of fact, if any, for clear error.” LaFevers v. Gibson, 182 F.3d 705, 711 (10th

                                          -5-
Cir.1999).

       Federal courts need not review habeas corpus issues that were defaulted in

state courts if the default constitutes an independent and adequate state ground

unless cause and prejudice or a fundamental miscarriage of justice can be shown.

See Coleman v. Thom pson, 501 U.S. 722, 750 (1991). M r. Turner contends the

state procedural rule barring presentation of the issues of prosecutorial

misconduct and insufficiency of the evidence is not firmly established and

regularly applied. W e decline to address whether Kansas Supreme Court Rule

183(c) is an independent and adequate state procedural ground to bar M r.

Turner’s claims. Rather, like the district court, we reach the merits of his claims.

See United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (declining to

address whether a claim was procedurally barred when claim would fail on the

merits). W e first address those claims decided on the merits for the first time in

the federal habeas proceedings, and follow with a discussion of the claims

decided on the merits in the state proceedings, applying the appropriate standards

in turn.

       W e review a sufficiency of the evidence claim in a habeas corpus

proceeding to determine w hether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Kelly v. Roberts, 998

F.2d 802, 807, 808 (10th Cir. 1993). W e accept the jury's resolution of the

                                          -6-
evidence as long as it is within the bounds of reason. Id. at 808. “This standard

of review respects the jury’s responsibility to weigh the evidence and draw

reasonable inferences from the testimony presented at trial.” Dockins, 374 F.3d at

939. Here, the testimony of the victims and third-parties provided substantial and

credible evidence from which the jury could easily and rationally conclude that

M r. Turner was guilty beyond a reasonable doubt of the crimes charged. M r.

Turner points to no evidence that discredits the victim and witness accounts of the

crimes.

         M r. Turner’s claim of prosecutorial misconduct must also fail. He alleges

“[t]he prosecutorial misconduct during the trial w as egregious and designed to

keep the scales of justice tipped in favor of the prosecution. The prosecutions

[sic] delays and attempts to elicit testimony that it knew or should have known to

be false rose to the level of constitutional concern.” Aplt. Br., Arguments and

Authorities at ¶ 6. To succeed on this issue, M r. Turner must show the

prosecutor’s conduct rendered his trial fundamentally unfair. Short v. Sirmons,

472 F.3d 1177, 1195 (10th Cir. 2006) (citing Donnelly v. DeChristoforo, 416 U.S.

637, 645 (1974)). M r. Turner complains that the prosecutor purposely delayed his

trial and continuously referred to M r. Turner as a “drug dealing gang member

who beats his wife.” Reply to State’s Resp. to Def.’s Pet. for W rit of Habeas

Corpus at 3, Turner v. Roberts, No. 05-3103, 2006 W L 749580 (D. Kan. M ar. 23,

2006).

                                          -7-
      The facts regarding the delay of M r. Turner’s trial are these. The state

moved to continue the original trial date of November 8, 1999 until January 3,

2000. On December 21, 1999, the state filed a motion to allow evidence of prior

crimes. Because M r. Turner did not obtain evidence regarding those prior crimes

until D ecember 30, 1999, he requested a continuance to properly prepare for trial.

The continuance was granted and the trial reset for M arch 6, 2000. Def.’s M ot. to

Dismiss at 1-2, State v. Turner, No. 99-CR-2287. M r. Turner offers no evidence

showing that the prosecution moved for the admission of prior crimes for the

purpose of delaying the trial.

      W e have reviewed the trial transcript and find no instances of name-calling;

instead, there are factual statements elicited from witnesses as to M r. Turner’s

involvement in matters such as use and possession of narcotics, gang membership,

and domestic violence. Oftentimes, M r. Turner’s counsel opened the door for the

state to pursue such information. See, e.g., Tr. Tran., Vol. II at 93-94 (eliciting

information on re-direct about M r. Turner’s gang affiliation after subject of gang

membership introduced on cross-examination); Tr. Tran., Vol. III at 71-96

(eliciting information on cross about domestic violence incidents between the

Turners after door opened to same on direct examination). Such usual trial

practice cannot be considered prosecutorial misconduct. The prosecutor did not

act in a way that rendered M r. Turner’s trial fundamentally unfair.

      W e now turn to M r. Turner’s claims of improper admission of prior crimes.

                                          -8-
At trial, the state introduced evidence that M r. Turner had committed sexual

crimes against minor girls on two previous occasions. His counsel objected. The

trial court admitted the evidence for the limited purpose of showing intent for the

indecent liberty charges and instructed the jury accordingly. Finding the evidence

immaterial to the indecent liberties charges and thus improperly admitted, the

Kansas Court of Appeals reversed those charges. State v. Turner, No. 85,666 at

12 (Kan. Ct. App. Sept. 28, 2001) (unpublished).

      But we disagree with M r. Turner’s assertion that there is no other credible

evidence supporting his remaining convictions for aggravated indecent liberties

with a child and criminal sodomy. Aplt. Br. A rguments and Authorities at ¶ 5. A

review of the testimony of the victims and of third parties with whom the victims

spoke compellingly details the crimes. M oreover, there is no reason to believe

that the jury did not adhere to the limiting instruction given by the trial court. “A

central assumption of our jurisprudence is that juries follow the instructions they

receive.” United States v. Castillo, 140 F.3d 874, 884 (10th Cir.1998). Given

that the trial court gave the jury a limiting instruction as to the prior crimes

evidence and that the appellate court reversed the very charges that the evidence

was intended to support, we cannot conclude that the resolution of this issue is

debatable among reasonable jurists. Cf. Duvall v. Reynolds, 139 F.3d 768, 787-88

(10th Cir. 1998) (holding improper admission of prior acts does not rise to the

level of constitutional error if the trial judge instructs jury to disregard the

                                           -9-
evidence).

      Finally, we address M r. Turner’s contention that he received ineffective

assistance of counsel. In making this claim in state court, M r. Turner alleged

several errors, all of which the state court found were either contradicted by the

record or concerned strategic and tactical decisions of counsel. See Turner v.

State, No. 90,552, 2004 W L 1714945, at *1 (Kan. Ct. App. Oct. 26, 2004). The

federal district court gave thorough treatment to M r. Turner’s numerous claims of

ineffective assistance of counsel and the resulting denial is not debatable under

the AEDPA standard we must apply.

      A ccordingly, for substantially the reasons stated by the district court, we

conclude that reasonable jurists would not disagree with that court’s dismissal of

M r. Turner’s claims. Because M r. Turner has not “made a substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his

request for a COA. W e also deny his request to proceed in form a pauperis.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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