                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 20, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 VAUGHN L. FLOURNOY,

              Petitioner - Appellant,                    No. 07-3278
       v.                                                (D. Kansas)
 DAVID R McKUNE; ATTORNEY                       (D.C. No. 07-CV-03108-MLB)
 GENERAL OF KANSAS,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Vaughn L. Flournoy, proceeding pro se, seeks a certificate of appealability

(COA) to appeal the district court’s denial of his application for relief under

28 U.S.C. § 2254. See id. § 2253(c)(1)(A) (requiring COA to appeal denial of

§ 2254 application). Because no reasonable jurist could conclude that

Mr. Flournoy’s § 2254 petition should have been resolved in a different manner,

see Slack v. McDaniel, 529 U.S. 473, 485 (2000), we deny his application for a

COA and dismiss this appeal.

I.    BACKGROUND

      Mr. Flournoy was convicted of the 1997 premeditated murder of his

grandmother, Lillian Thomas, and the battery of his girlfriend, Cheryl Key. His
conviction was affirmed by the Kansas Supreme Court, although the court vacated

his sentence and remanded for resentencing. See State v. Flournoy, 36 P.3d 273

(Kan. 2001). Ultimately his sentence was affirmed. See State v. Flournoy,

No. 88,814, 2003 WL 22938959, at *2 (Kan. Dec. 12, 2003). Mr. Flournoy

pursued postconviction relief under Kan. Stat. Ann. § 60-1507, but the Kansas

Court of Appeals affirmed the trial court’s denial of relief, see Flournoy v. State,

No. 95,426, 2006 WL 3000775 (Kan. Ct. App. Oct. 20, 2006), and the Kansas

Supreme Court denied review. On April 20, 2007, Mr. Flournoy filed his § 2254

application in the United States District Court for the District of Kansas.

II.   DISCUSSION

      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, 529 U.S. at 484 (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.

      The Antiterrorism 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

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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 stated,

      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). For those of Mr. Flournoy’s claims that were

adjudicated on the merits in the state court, “AEDPA’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).

      Mr. Flournoy’s application for a COA and appellate brief raise two claims:

(1) that prosecutorial misconduct during closing argument violated his due-




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process right to a fair trial, and (2) that admission of Ms. Key’s preliminary-

hearing testimony violated his right to confront the witnesses against him. 1

      A.     Prosecutorial Misconduct

      Mr. Flournoy alleged eight instances of prosecutorial misconduct during

closing argument. At trial he failed to object to any of the alleged misconduct.

But he raised all eight allegations on direct appeal to the Kansas Supreme Court,

which concluded that “[t]he prosecutor’s remarks . . . d[id] not rise to the level of

violating either Flournoy’s right to a fair trial or his Fourteenth Amendment right

to due process.” Flournoy, 36 P.3d at 282. “Generally, a prosecutor’s improper

remarks require reversal of a state conviction only if the remarks ‘so infected the

trial with unfairness as to make the resulting conviction a denial of due process.’”

Miller v. Mullin, 354 F.3d 1288, 1293 (10th Cir. 2004) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)).

      Mr. Flournoy contends that in seven instances the prosecutor’s argument

was not based on the evidence. The Kansas Supreme Court appears to have ruled

that in five instances the statements were supported by the evidence. These were

the statements to the jury that (1) Ms. Thomas “let it go” after she and


      1
        In his application for a COA, Mr. Flournoy appears to raise two additional
claims: that the alleged instances of misconduct had the cumulative effect of
denying his right to due process and that the prosecutor improperly cross-
examined him. Because these claims were not presented to the district court, we
decline to consider them. See Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.
1999).

                                         -4-
Mr. Flournoy had argued but Mr. Flournoy would not “let it go,” R. Doc. 1 at

6a–6b; (2) Ms. Thomas had “raise[d] her arm in probably self-defense, the gun

being aimed at her, but her arm was no shield with that .38 Special. It went right

through her arm,” id. at 6d; (3) Mr. Flournoy is a “manipulator” and a “control

freak,” id. at 6e; (4) Mr. Flournoy is “a man that has been avoiding consequences

all of his life for his actions,” id. at 6f; and (5) Mr. Flournoy “wasn’t crazy when

this happened” and he had been “evaluated” twice for a mental disease, id. at

6e–6f. See Flournoy, 36 P.3d at 282-84. The state court’s ruling was not based

on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). With

respect to the fifth instance, insofar as Mr. Flournoy contends that the prosecutor

was prohibited from discussing his mental condition because he had not raised a

diminished-capacity defense, his factual premise is wrong. The jury was

instructed on diminished mental capacity. See Flournoy, 36 P.3d at 289.

      In regards to the remaining two allegations of making arguments not based

on the evidence, the Kansas Supreme Court agreed that the prosecutor had erred

in (1) stating that before Ms. Thomas’s death, Ms. Key had taken a knife from

Mr. Flournoy and put it back in the kitchen; and (2) asking the jury to imagine

what went through Ms. Thomas’s mind before her death, stating that she was

either killed immediately or told not to move, and suggesting that only

Mr. Flournoy knew whether she pleaded for her life. But with respect to these

allegations, the court concluded that the error “had little, if any, likelihood of

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changing the result at trial.” Id. at 283. The court’s determination was not

unreasonable under § 2254(d)(1) or (2). See Walker v. Gibson, 228 F.3d 1217,

1243 (10th Cir. 2000) (prosecutor’s appeals to emotion were insufficient to deny

fair trial because nature of the crime itself likely produced sympathy before

prosecutor had commented), overruled on other grounds by Neill v. Gibson, 278

F.3d 1044, 1057 n.5 (10th Cir. 2001).

      The eighth alleged incident of prosecutorial misconduct was the

prosecutor’s calling Mr. Flournoy a liar. The Kansas Supreme Court said that the

prosecutor’s remarks were improper, but concluded that, in light of the

overwhelming evidence against Mr. Flournoy, “the error had little, if any,

likelihood of changing the result of the trial.” Flournoy, 36 P.3d at 284. The

Kansas court was undoubtedly correct in stating that the remark was improper

under that state’s rules of evidence. But we can grant relief only for a violation

of federal law. See Morris v. Burnett, 319 F.3d 1254, 1277 (10th Cir. 2003) (“Of

course, relief can be granted under 28 U.S.C. § 2254 only for violations of federal

law, not state law.”). And, as noted by the district court, under federal law it is

not improper for the prosecution to refer to a defendant as a liar “on account of

irreconcilable discrepancies between the defendant’s testimony and other

evidence in the case.” Bland v. Sirmons, 459 F.3d 999, 1025 (10th Cir. 2006).

Because the prosecutor was commenting on the discrepancies between




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Mr. Flournoy’s testimony and other evidence at trial, the district court’s denial of

relief on this ground was clearly correct.

      In sum, the district court’s denial of relief on the claims of prosecutorial

misconduct could not be debated by reasonable jurists.

      B.     Ms. Key’s Preliminary Hearing Testimony

      Mr. Flournoy contends that Ms. Key’s preliminary-hearing testimony was

improperly admitted at trial. Although he cites only to Kansas law, we join the

district court in treating his argument as alleging a violation of the Sixth

Amendment’s Confrontation Clause, as incorporated into the Fourteenth

Amendment. Because Ms. Key’s testimony was undoubtedly “testimonial”

hearsay, see Crawford v. Washington, 541 U.S. 36, 51–52 (2004), the

Confrontation Clause bars its admission unless (1) Ms. Key was shown to be

unavailable and (2) Mr. Flournoy had a prior opportunity to cross-examine her,

see id. at 53–54. Mr. Flournoy disputes only whether Ms. Key was unavailable.

      Mr. Flournoy, citing state and federal law, challenged admission of the

preliminary-hearing testimony in his direct appeal to the Kansas Supreme Court,

contending that the state had not exercised due diligence in trying to locate

Ms. Key. The court disposed of the unavailability issue on state-law grounds, see

Kan. Stat. Ann. § 60-460(c)(2) (2000 Supp.), without citing any federal

Confrontation Clause precedents. See Flournoy, 36 P.3d at 285–86.

Nevertheless, AEDPA deference is still required. We look not to the authorities

                                         -7-
relied on by the state court but to the court’s reasoning and result. See Early v.

Packer, 537 U.S. 3, 8 (2002) ( “A state-court decision is contrary to our clearly

established precedents if it applies a rule that contradicts the governing law set

forth in our cases or if it confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from our precedent. Avoiding these pitfalls does not require citation of

our cases—indeed, it does not even require awareness of our cases, so long as

neither the reasoning nor the result of the state-court decision contradicts them.”

(citation and internal quotation marks omitted)). Our decision in Cook v.

McKune, 323 F.3d 825 (10th Cir. 2003), is directly in point. The Kansas Supreme

Court had ruled on the unavailability of a witness under Kansas law without

discussing federal case law. We said that a state court’s “failure to discuss or

even to be aware of federal precedent does not in itself render a state court’s

decision contrary to federal law,” id., 323 F.3d at 831, and reviewed the case

under AEDPA’s deferential standard. Thus, we apply the AEDPA standard here.

      Under Ohio v. Roberts, 448 U.S. 56, 74 (1980), overruled on other grounds

by Crawford v. Washington, 541 U.S. 36 (2004), a witness is not unavailable

unless the prosecution has made a good-faith effort to obtain her attendance at

trial. Whether the government has made a good-faith effort is “a question of

reasonableness.” Cook, 323 F.3d at 835 (internal quotation marks omitted). In

determining the reasonableness of the government’s efforts, courts should

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consider the following: (1) “the more crucial the witness, the greater the effort

required to secure [her] attendance”; (2) “the more serious the crime for which the

defendant is being tried, the greater the effort the government should put forth to

produce the witness at trial”; (3) “the defendant’s interest in confronting the

witness is stronger” in cases “where a witness has special reason to favor the

prosecution, such as an immunity arrangement in exchange for cooperation”; and

(4) a state should “make the same sort of effort to locate and secure the witness

for trial that it would have made if it did not have the prior testimony available.”

Id. at 835–36.

      The Kansas Supreme Court described the government attempts to locate

Ms. Key:

      During the trial, the prosecutor told the court that she had been
      unable to personally serve Key with a subpoena. The prosecutor
      moved the court for a finding of Key's unavailability in order to
      introduce the preliminary hearing transcript. The State presented
      testimony from two investigators from the district attorney's office.
      One testified that he first located Key in May 1998. He said the
      district attorney's office had trouble getting Key to appear at the
      preliminary hearing. At the time she lived in Kansas City, Missouri.
      Her family brought her in for the hearing. Because of the nature of
      this case, the investigator wrote down Key's date of birth, where she
      and family members lived, her social security number, and her place
      of employment. According to the investigator, for out-of-state
      witnesses such as Key, the district attorney's office often “[goes]
      through the out-of-state witness act to secure a witness,” which is
      what the State did here.

             In June 1999, two investigators attempted to find Key for the
      trial. One discovered that Key had moved and left no forwarding
      address. Key's mother had died, so the investigator checked with

                                          -9-
other agencies to see where Key might have been living. He
discovered places that Key had worked and got an address on
Belfontaine in Missouri where she was receiving unemployment
checks. He went to that address. Key was not there, but a woman
told him she would be back later. He left a card and a message for
Key to call him. He was told that Key did not have a phone number.
The next day, he returned to the house, and he could hear people
talking inside, but nobody would answer the door. He also went to
the last known address of Key’s mother, but the house had been
condemned by the city.

       The investigators prepared out-of-state motions. A second
investigator testified that he tried to locate Key and serve her with a
subpoena to testify at trial. He mailed subpoenas to three addresses,
but two of the subpoenas were returned undeliverable. After
out-of-state witness paperwork was filed, the chief investigator for
the Jackson County, Missouri, District Attorney’s office assisted in
attempting to serve Key. A hearing was set in Jackson County, but
investigators were unable to find her.

       The second investigator went to Missouri to look for Key,
going to four addresses. At the Belfontaine address he spoke to a
young man who initially said Key did not live there, but then said
that he knew her but did not know when she would be back. When
the investigator returned to the house later that day, the front door
was open, but when he started walking up the sidewalk, the front
door slammed. He heard someone locking the door. He knocked,
but nobody answered. The young man he had talked to earlier
walked up to the front porch. He was “rude and guarded.” The
investigator left his card and a subpoena and asked the young man to
give them to Key.

       The investigator also learned that Key had been issued a new
driver's license with the Belfontaine address on it. The investigator
testified that the Missouri “SRS” gave him a phone number, which he
called. He said the person who answered the phone was very “rude”
and said they did not know Key and that she did not live there.

       In addition, he also tried to track down Key's brother. During
the investigation, he encountered someone who knew her brother,
and this person asked him about Flournoy. He also found Key’s

                                  -10-
       cousin, who said he would try to contact Key. Later, the cousin told
       the investigator that Key did not want to be involved and “[t]hat’s
       why she is hiding.” Right before trial, the investigator stopped by
       the Belfontaine house another time and left a note and a subpoena
       with a young woman.

Flournoy, 36 P.3d at 285–86. The court affirmed the trial court’s finding that the

state had “made a good faith effort to find Key.” Id. at 286. Mr. Flournoy does

not dispute the Kansas Supreme Court’s statement of fact regarding the state’s

efforts to bring Ms. Key to court. Rather, he disputes whether those facts support

the conclusion that the government put forth a good-faith effort.

       No reasonable jurist could debate that the Kansas 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); see Roberts, 448 U.S. at 75–77 (affirming determination that

witness was unavailable).

III.   CONCLUSION

       Because no reasonable jurist could debate the district court’s denial of

relief, we DENY Mr. Ewing’s application for a COA and DISMISS this appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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