                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       April 7, 2009
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



 ABRAHAM ADKINS,

          Petitioner-Appellant,
 v.                                                      No. 08-3250
 STEPHEN N. SIX, Attorney General                (D.C. No. 07-CV-3211-JTM)
 for the State of Kansas,                                 (D. Kan.)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      Abraham Adkins, a former Kansas state prisoner proceeding pro se,

requests a certificate of appealability (“COA”) to appeal the district court’s denial

of his 28 U.S.C. § 2254 habeas petition. 1 We deny a COA and dismiss this

matter.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        The fact that Adkins is no longer in custody does not moot his petition
because he was in custody at the time of filing. See Spencer v. Kemna, 523 U.S.
1, 7 (1998) (holding the custody requirement in the habeas statute only requires
that the petitioner be in custody at the time the petition was filed).
                                          I

      On June 6, 2001, Kansas City, Kansas police stopped a car in which Adkins

was a passenger. Although the driver consented to a search of the car, Adkins

refused to get out of the car. After police removed Adkins from the car, an

officer discovered some bags on the car seat where Adkins was sitting. The bags

contained substances that tests would later identify as marijuana and cocaine.

      Adkins was charged with possession of marijuana and cocaine in violation

of Kansas law. A jury convicted Adkins on both charges. The state court

sentenced Adkins to 52 months’ incarceration on the cocaine charge and 12

months’ incarceration for the marijuana charge. The sentences ran concurrently.

      Adkins appealed his state conviction, challenging the instructions the court

gave to the jury and the sufficiency of the evidence. On June 6, 2003, the Kansas

Court of Appeals affirmed his conviction on both counts, noting that the

possession instruction given to the jury was, and remained, an accurate statement

of Kansas law. On September 23, 2003, the Kansas Supreme Court denied

Adkins’ petition for review.

      On March 19, 2004, Adkins filed an application for state post-conviction

relief. Adkins advanced three arguments: (1) counsel provided ineffective

assistance by failing to object to the possession instruction; (2) counsel provided

ineffective assistance because Adkins was intoxicated and unable to make sound

judgments regarding his defense; and (3) the trial court erred by failing to give a

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proper possession instruction. The state district court denied Adkins’ petition on

April 22, 2005. Adkins abandoned his intoxication claim, but appealed the state

district court’s denial of the remainder of his claims. On November 3, 2006, the

Kansas Court of Appeals held that Adkins could not establish ineffective

assistance of counsel because Adkins’ counsel did not perform below a

reasonably objective standard, again noting that the possession instruction given

to the jury was, and remained, an accurate statement of Kansas law. The Kansas

Court of Appeals also rejected Adkins’ ineffective assistance claims because

Adkins could not show prejudice. The Kansas Supreme Court denied his petition

for review on February 13, 2007.

      On August 16, 2007, Adkins filed a pro se petition for federal habeas relief

pursuant to 28 U.S.C. § 2254. Adkins’ petition identified three grounds for relief:

(1) the trial court clearly erred by failing to instruct the jury properly on

“possession,” “constructive possession,” and “nonexclusive possession”—R. Vol.

I, Doc. 1 at 6; (2) the Kansas Court of Appeals erred by finding that Adkins could

not show prejudice; and (3) his counsel was ineffective for not requesting a

proper possession instruction.

      On August 27, 2008, the district court denied Adkins’ petition. On

September 8, 2008, Adkins filed a notice of appeal. Adkins was paroled the next

day, September 9, 2008. On October 31, 2008, Adkins filed a motion for issuance

of a COA.

                                            3
                                           II

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make that showing, a prisoner must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

                                          III

      Adkins seeks a COA with respect to four issues related to the challenged

jury instructions. First, Adkins argues that his counsel was ineffective by failing

to inform Adkins of the right to object to the possession instruction. Second,

Adkins asserts that counsel’s failure to object to the possession instruction

indicates ineffective assistance of counsel and structural error. Third, Adkins

argues that the trial court erred by giving the possession instruction. Fourth,

Adkins argues that the trial court also erred by failing to properly define

possession in the jury instructions.

      After reviewing the record, we conclude that Adkins’ arguments fail to

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satisfy the standards for issuance of a COA. Claims of erroneous jury

instructions can result in the setting aside of a state conviction on habeas review

only if “the errors had the effect of rendering the trial so fundamentally unfair as

to cause a denial of a fair trial in the constitutional sense, or is otherwise

constitutionally objectionable as, for example, by transgressing the

constitutionally rooted presumption of innocence.” Brinlee v. Crisp, 608 F.2d

839, 854 (10th Cir. 1979) (internal citations omitted). Here, the challenged jury

instruction stated, “As used in these instructions ‘possession’ means: Having

control over a place or thing with knowledge of and the intent to have such

control.” R. Vol. V at 81. The Kansas Court of Appeals found that this jury

instruction accurately stated applicable law. No reasonable jurist could disagree.

      This conclusion also resolves the ineffective assistance of counsel

arguments. As the district court properly noted, for Adkins to be entitled to

habeas relief, he must show that the state courts’ determinations regarding

counsel’s effectiveness were contrary to or unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984). In this context, the Kansas Court of Appeals

applied the Kansas Supreme Court’s adoption of the Strickland two-pronged

standard in Chamberlain v. State, 694 P.2d 468, 475 (Kan. 1985). Under this

framework, Adkins must show that “counsel’s representation fell below an

objective standard of reasonableness” and that there is “a reasonable probability

[that] the decision challenged would have been different had he received effective

                                            5
assistance.” Chamberlain, 694 P.2d at 473–74 (citing Strickland, 466 U.S. at 690,

695). The Kansas Court of Appeals determined that because the jury instruction

was proper, Adkins could not show that his counsel’s performance was below a

reasonably objective standard or that counsel’s performance prejudiced his

defense. No reasonable jurist could conclude that Adkins was denied his right to

effective assistance of counsel.

                                       IV

      The application for COA is denied and the matter is dismissed.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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