                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 20, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 BR YAN LEE BR OYLES,

              Petitioner - A ppellant,                    No. 06-3403
       v.                                                 (D. Kansas)
 DA VID R . M cKU NE; ATTO RN EY                 (D.C. No. 05-CV-3445-W EB)
 GEN ERAL O F KANSAS,

              Respondents - Appellees.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      On July 19, 1999, an information was filed against Bryan L. Broyles in

Greenwood County, Kansas, alleging that he had killed his infant son Hagen Lee

Broyles. He was convicted by a Kansas state jury of first degree felony murder

and sentenced to life imprisonment. He appealed his conviction to the Kansas

Supreme Court, where he argued, among other things, that the prosecutor had

engaged in misconduct and that cumulative error required a new trial. The court

rejected these arguments. See State v. Broyles, 36 P.3d 259 (Kan. 2001). He then

collaterally attacked his conviction in state court, alleging ineffective assistance

of counsel. After an evidentiary hearing the court denied relief, and the Kansas

Court of Appeals affirmed.
      M r. Broyles then sought relief in the United States District Court for the

District of Kansas under 28 U.S.C. § 2254, and the district court denied the

application. The court also denied his application for a certificate of appealability

(C OA), see 28 U.S.C. § 2253(c) (requiring COA to appeal denial of § 2254

application). Although he has not requested a certificate of appealability from

this court, he has filed a notice of appeal, which we construe as a request for such

a certificate. See U nited States v. M endoza, 118 F.3d 707, 709 n.3 (10th Cir.

1997) (appeal of district court judgment may be construed as motion for

certificate of appealability). He asserts before us that (1) his counsel was

ineffective; (2) the prosecutor’s misconduct during his trial denied him due

process and a fair trial; and (3) cumulative error denied him due process. W e

deny a COA and dismiss the appeal.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

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      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

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

United States,” 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)(1), (2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court's decisions but unreasonably applies that
      principle to the facts of the prisoner's case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (brackets, citations and

internal quotation marks omitted). Therefore, because M r. Broyles’s claims were

adjudicated on the merits in state court, “A EDPA’s deferential treatment of state

court decisions must be incorporated into our consideration of [his] request for

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir .2004).




                                         -3-
      W e have review ed the district court’s thorough opinion. No reasonable

jurist could debate its analysis of the issues. W e add only one comment. In his

brief to this court M r. Broyles argues that his counsel was ineffective for not

presenting the testimony of the child’s mother that she had observed bruising

when she picked him up from day care. But he does not show how this contention

was preserved in state court or federal district court. M oreover, the trial

transcript contains the mother’s testimony about these injuries.

      W e DENY M r. Broyle’s application for a COA and DISM ISS the appeal.

W e GRANT his motion to proceed in form a pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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