                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      February 1, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court



 M ICH AEL A . BETHEL,

          Petitioner-A ppellant,

 v.
                                                         No. 06-3107
 KAREN ROHLING, W arden, Larned                  (D.C. No. 04-CV-3411-M LB)
 Correctional M ental Health Facility;                     (Kansas)
 PHIL KLINE, Attorney General,
 Attorney General of the State of
 Kansas,

          Respondents-Appellees.




                                      ORDER *


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




      M ichael Bethel, a K ansas state prisoner, filed this application for a

certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1)(A), seeking

to challenge the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition.

He also seeks leave to proceed in form a pauperis (ifp) on appeal. We grant his

petition to proceed ifp but deny his application for a COA.


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
       M r. Bethel was charged with one count of capital murder and two counts of

first degree murder. In exchange for the state’s agreement not to seek the death

penalty, the defense agreed to a bench trial on stipulated facts. One of those

stipulated facts was that M r. Bethel told detectives God told him to kill the

victims. There was no dispute that M r. Bethel intended to kill his three victims,

or that he is mentally ill.

       Following his conviction, M r. Bethel filed an appeal with the Kansas

Supreme Court, claiming among other things that (1) K AN . S TAT . A NN . § 22-3220

violated his rights under the Due Process Clause by abolishing the affirmative

defense of insanity, and (2) the K ansas mens rea approach to insanity

unconstitutionally shifted to the defendant the burden of proof on the issue of

intent. In a published opinion, the Kansas Supreme Court concluded there is no

fundamental right to an insanity defense and the state’s abolition of an affirmative

insanity defense therefore did not violate M r. Bethel’s right to due process. State

v. Bethel, 66 P.3d 840 (Kan. 2003). 1 W e note that under the Kansas statute to

which M r. Bethel objects, “[it] is a defense to a prosecution . . . that the

defendant, as a result of mental disease or defect, lacked the mental state required

as an element of the offense charged.” K AN . S TAT . A NN . § 22-3220. Thus, as the

Supreme Court recently noted, the Kansas statute still “allow[s] consideration of



       1
       The United States Supreme Court denied M r. Bethel’s petition for a writ of
certiorari. Bethel v. Kansas, 540 U.S. 1006 (2003).

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evidence of mental illness directly on the element of mens rea defining the

offense.” Clark v. Arizona, 126 S. Ct. 2709, 2721-22 (2006). In this case,

however, M r. Bethel stipulated that “he intended to kill [the three victims], and

that he premeditated the murders,” Bethel, 66 P.3d at 843, thus admitting the

elements of the crime.

      In the present habeas petition, M r. Bethel contends (1) he was precluded

from putting on an insanity defense by the enactment of K AN . S TAT . A NN . § 22-

3220, and (2) application of K AN . S TAT . A NN . § 22-3220 effectively abrogated an

essential element of mens rea. Under AEDPA , a habeas petition may not be

granted unless the state court’s resolution of the disputed claim “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the U nited States.” 28 U.S.C. § 2254(d)(1).

      The district court denied M r. Bethel’s petition. The court relied on M edina

v. California, 505 U.S. 437, 449 (1992), where the Court stated, “we have not

said that the Constitution requires the States to recognize the insanity defense.”

Consequently, the court concluded the Kansas legislature’s abolition of the

insanity defense and the Kansas Supreme Court’s decision upholding that

abolition cannot be deemed “contrary to, or involv[ing] an unreasonable

application of, clearly established Federal law . . .” § 2254(d)(1). M oreover,

given the United States Supreme Court’s statement in Powell v. Texas, 392 U.S.

514, 535 (1968), that “this Court has never articulated a general constitutional

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doctrine of mens rea,” the district court concluded there is no clearly established

federal law on that issue either.

      A “COA may not issue unless ‘the applicant has made a substantial

showing of the denial of a constitutional right.’” Slack v. M cDaniel, 529 U.S.

473, 483 (2000) (quoting 28 U.S.C. § 2253(c).

             To obtain a COA under § 2253(c), a habeas prisoner must
      make a substantial showing of the denial of a constitutional right, a
      demonstration that . . . includes showing 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. at 483-84 (quotation marks omitted). M r. Bethel asserts reasonable jurists

would find the district court’s assessment of his constitutional claims debatable or

wrong. W hile M r. Bethel may be correct, this assertion does not adequately

respond to the more demanding question we must answer when evaluating a

habeas petitioner’s application for a COA. As the Supreme Court explained in

M iller-El v. Cockrell, 537 U.S. 322, 336 (2003), we are required to “look to the

District Court’s application of AEDPA to petitioner’s constitutional claims and

ask whether that resolution was debatable among jurists of reason.” (emphasis

added). Thus, we must ask whether the district court correctly applied AEDPA

deference in evaluating the state court ruling. As we have previously noted, the

district court may grant a habeas petition only after a showing that the state’s

resolution of the claim was “contrary to, or involved an unreasonable application



                                          -4-
of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). After reviewing the record in this case,

Supreme Court precedent, and relevant scholarly articles, we conclude the district

court correctly determined that M r. Bethel’s claims were not debatable in light of

the § 2254 standard.

      Because M r. Bethel has not met his AEDPA burden, we may not issue a

COA. W e do conclude, however, that M r. Bethel has demonstrated the existence

of “a reasoned, nonfrivolous argument on the law and the facts in support of the

issues raised on appeal.” M cIntosh v. United States Parole Comm'n, 115 F.3d

809, 812-13 (10th Cir.1997) (internal quotation omitted). He is therefore entitled

to in form a pauperis statutes on appeal.

      W e GR A N T M r. Bethel’s motion to proceed ifp, DENY his application for

a COA, and DISM ISS his appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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