                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                                 July 8, 2015
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
COREY BROWN,

      Petitioner - Appellant,

v.                                                            No. 15-3048
                                                     (D.C. No. 5:13-CV-03078-SAC)
DAVID R. McKUNE; ATTORNEY                                       (D. Kan.)
GENERAL OF KANSAS,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

       Petitioner Corey Brown is serving a 534-month prison term in the Kansas

correctional system. Appearing pro se,1 he seeks a certificate of appealability (“COA”)

to challenge the district court’s denial of his application for a writ of habeas corpus under

28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final

order in a habeas corpus proceeding in which the detention complained of arises out of

       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
        Because Mr. Brown is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
process issued by a State court”). Mr. Brown also requests leave to proceed in forma

pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests

and dismiss this matter.

                                   I.     BACKGROUND

       Mr. Brown was charged in state court with two counts of attempted first-degree

murder or, in the alternative, two counts of aggravated battery against a law enforcement

officer. He also was charged with possession of marijuana, possession of cocaine, and

criminal possession of a firearm. A jury convicted him of two counts of the lesser

included offense of attempted second-degree murder, marijuana possession, and criminal

possession of a firearm. The state courts affirmed his direct appeal and denied his

requests for post-conviction relief. The federal district court denied his § 2254 petition.

He seeks a COA on the three issues addressed by the district court.

                                    II.     DISCUSSION

       A COA is necessary to appeal from a district court’s denial of a § 2254 habeas

petition. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). When a state court has

decided the petitioner’s claim on the merits, we “look to the District Court’s application

of [the Antiterrorism and Effective Death Penalty Act (“AEDPA”)]” to petitioner’s

constitutional claims and ask whether that resolution was debatable among jurists of

reason.” Id. at 336. AEDPA provides that federal courts cannot grant habeas relief

unless the state court’s decision “was contrary to, or involved an unreasonable

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

the United States,” 28 U.S.C. § 2254(d)(1); or “was based on an unreasonable

                                              2
determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).

                            A. Claim One – Duplicitous Charges

       Mr. Brown alleged in his petition that the charges against him of attempted first-

degree murder and aggravated battery were unconstitutionally duplicitous. The district

court denied this claim as procedurally barred and on the merits. As to the former, the

court noted that Mr. Brown had not raised this issue for review in the state appellate

courts and had not otherwise overcome his failure to exhaust his claim. As to the latter,

the court denied the claim because Mr. Brown had not shown that the charges against him

posed any danger of constitutional violation at trial from duplicity.

       In his brief, Mr. Brown argues generally about how duplicitous charges can cause

confusion and contends the prosecution presented evidence at trial on the alternative

charges. Aplt. Br. at 7. He has not, however, shown that any of the dangers of duplicity

that this court recognized in United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir.

1998)—a non-unanimous verdict, a prejudiced subsequent double jeopardy defense, or

court difficulty in determining admissibility of evidence—were present in his case. As

the district court explained, the record shows the jury unanimously convicted Mr. Brown

of two charges of attempted second degree murder, a lesser included offense of attempted

first degree murder.

       Even though this claim is unexhausted, a federal court may deny it on the merits

so long as none of the petitioner’s claims has merit. See 28 U.S.C. § 2254(b)(2);

Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009); Moore v. Schoeman, 288

                                              3
F.3d 1231, 1235 (10th Cir. 2002). We conclude the district court correctly denied this

claim on the merits and that reasonable jurists could not debate that ruling. We therefore

deny a COA.

                           B. Claim Two – “Sentencing Inequity”

       In his § 2254 petition, Mr. Brown complained that a year after his conviction and

sentence, the state legislature changed attempted second degree murder from a level 1

felony to a level 3 felony but did not make the change retroactive. The district court

denied relief because Mr. Brown had failed to identify a violation of the Constitution or

federal law.

       In his brief, Mr. Brown argues he has suffered a Fourteenth Amendment equal

protection violation. Aplt. Br. at 8. He did not make this argument before the district

court. Even if he had, he has not provided any authority, and we have found none, that

the Fourteenth Amendment requires state legislatures that lower the sentence for a

particular crime to make that change retroactive. Accordingly, reasonable jurists could

not debate the district court’s denial of this habeas claim, and we deny a COA.

                           C. Claim Three – “Identical Offense”

       Mr. Brown claimed the state trial court violated his due process rights when it

failed to sentence him under the identical offense doctrine, a Kansas state law doctrine

that requires a sentencing court to impose the lesser of two sentences for identical crimes.

See State v. Nunn, 768 P.2d 268, 284 (Kan. 1989). He argued the charges of attempted

second-degree murder and aggravated battery against a law enforcement officer are

identical. In his direct appeal, the Kansas Court of Appeals disagreed, holding these two

                                             4
crimes are separate, not identical. Brown v. State, No. 104,248, 2011 WL 3795475, at *2

(Kan. Ct. App. Aug. 26, 2011) (unpublished). The federal district court said this was a

reasonable construction of state law. More importantly for our purposes, the district

court determined the identical offense claim did not adequately present a violation of the

Constitution or federal law. For substantially the same reasons given by the district court,

we agree.

       In his brief, Mr. Brown devotes most of his argument to contesting the state court

of appeals’ ruling that the two crimes here are separate and not identical. Aplt. Br. at 9.

In the last sentence of his brief, Mr. Brown alleges “a denial of my right to a fair trial

Constitutionally.” Id. Apart from his claim being about his sentence rather than his trial,

Mr. Brown simply has not made, as he must for a COA, “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We deny a COA on this claim.

                                    III.   CONCLUSION

       Reasonable jurists could not debate that the district court correctly denied habeas

relief under 28 U.S.C. § 2254 to Mr. Brown on any of his claims. We therefore deny his

request for a COA. We also deny his motion to proceed ifp. This matter is dismissed.


                                               ENTERED FOR THE COURT



                                               Scott M. Matheson, Jr.
                                               Circuit Judge




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