                                                                              F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                             January 26, 2007
                                   T E N T H C IR C U IT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 DAVID U. JONES ,

       Petitioner - A ppellant ,
                                                           No. 06-3342
 v.                                                (D.C. No. 05-CV-3248-M LB )
                                                             ( D. Kan.)
 DAVID R. M CKUNE, W arden,
 Lansing Correctional Facility;
 A TTO RN EY G EN ER AL O F
 KANSAS ,

       Respondent - Appellees .



                                        ORDER
               D E N Y IN G C E R T IF IC A T E O F A PP E A L A B IL IT Y


Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.




      Petitioner-Appellant David Jones, a state inmate appearing pro se, seeks a

certificate of appealability (COA) allowing him to appeal from the district court’s

order denying relief on his habeas petition filed pursuant to 28 U.S.C. § 2254.

Because M r. Jones has failed to make a “substantial showing of the denial of a

constitutional right,” see id. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473, 483-

84 (2000), w e deny a COA and dismiss the appeal.

      In 1999, M r. Jones w as convicted of rape following a bench trial in state
district court. The trial court found that M r. Jones was one of four men who

raped victim C.F. in a hotel room. C.F. testified that after a night of drinking and

drug use, she awoke to find M r. Jones in her hotel room. She testified that,

shortly thereafter, three other men entered the room. According to C.F., two of

the men held her down on either side while she was raped by M r. Jones and

another man. Although C.F. did not open her eyes during the actual rape, she

testified that she w as raped by two men and that the two men holding her down

remained the same; therefore she had to have been raped by M r. Jones. M r. Jones

was sentenced to 220 months imprisonment.

      The only testimony presented by the state was that of C.F. Three witnesses

were presented by M r. Jones in an attempt to discredit C.F.’s testimony. The trial

court ultimately convicted M r. Jones based on its determination that C.F.’s

testimony was credible.

      The Kansas Court of Appeals affirmed M r. Jones’s conviction on direct

review, see State v. Jones, No. 84,395 (Kan. Ct. App. June 22, 2001), and the

Kansas Supreme Court denied review . Thereafter, M r. Jones sought post-

conviction relief under Kan. Stat. Ann. § 60-1507. The state district court denied

relief, see I R. Doc. 2, Ex. C, the Kansas Court of Appeals affirmed, see I R. Doc.

2, Ex. H , and the K ansas Supreme Court denied review.

      M r. Jones next filed a federal habeas petition claiming (1) insufficiency of



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the evidence, (2) prosecutorial misconduct based upon the use of perjured

testimony, and (3) ineffective assistance of counsel based on (a) counsel’s alleged

conflict of pecuniary interest, (b) failure to locate and investigate a witness

(Kareena Hickles), (c) failure to investigate the victim’s reputation for veracity,

(d) failure to seek recusal of the trial judge, and (e) alleged cocaine use.

       The district court determined that issues (2) and (3)(b), were procedurally

barred because they had not been raised before the state courts, and M r. Jones had

not shown cause, prejudice, or a fundamental miscarriage of justice. It rejected

claim (1), concerning sufficiency of the evidence, after concluding that the

Kansas Court of Appeals’ decision on direct appeal was not an unreasonable

application of Jackson v. Virginia, 443 U.S. 307 (1979). See 28 U.S.C.

§ 2254(d)(1). It rejected claim (3)(a), concerning counsel’s alleged conflict of

pecuniary interest, because the Kansas Court of Appeals ultimately determined

that no fee dispute existed and M r. Jones had failed to overcome this factual

determination. See id. §§ 2254(d), 2254(e)(1). The court rejected claim (3)(c),

concerning the failure to investigate the victim’s veracity, because M r. Jones

failed to develop this theory in a state post-conviction hearing, see id.

§ 2254(e)(2), and because the Kansas Court of Appeals’ rejection of this claim

was not an unreasonable application of Strickland v. W ashington, 466 U.S. 668

(1984). See 28 U.S.C. § 2254(d)(1). W ith respect to claim (3)(d), concerning



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failure to seek recusal of the trial judge, the district court noted that the state

court’s finding of no actual bias left little basis for recusal, and that the state

court’s determination of no deficient performance or prejudice under Strickland

was not an unreasonable application of federal law . See 28 U.S.C. §§ 2254(d)(1),

2254(e)(1). Finally, the district court concluded that claim (3)(e), concerning

counsel’s alleged cocaine use, was unsupported by the facts and that the state

court’s rejection of the claim based on lack of deficient performance or prejudice

under Strickland was not an unreasonable application of federal law. See id.

§ 2254(d).

      On appeal, M r. Jones seeks to raise only his sufficiency of the evidence

claim. He contends that the state failed to prove its case beyond a reasonable

doubt and that the court erred in applying the sufficiency of the evidence

standard. To make a substantial showing of the denial of a constitutional right,

M r. Jones must show 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 omitted).

      W e have not yet decided whether the review of a state court’s sufficiency

of the evidence determination is a legal question reviewable under 28 U.S.C. §

2254(d)(1) or a factual matter reviewable under 28 U.S.C. § 2254(d)(2). See



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Hamilton v. M ullin, 436 F.3d 1181, 1194 (10th Cir. 2006); but see Spears v.

M ullin, 343 F.3d 1215, 1238 (10th Cir. 2003) (reviewing sufficiency of the

evidence as a question of law). Regardless, our review is limited to determining

whether the Kansas Court of Appeals applied a standard that was contrary to that

for sufficiency of the evidence as set forth in Jackson or whether it unreasonably

applied the Jackson standard itself to the facts of this case. See Spears, 343 F.3d

at 1238. W e look at the state court’s result, even in the absence of extensive

reasoning or citation of federal authority. Early v. Packer, 537 U.S. 3, 8 (2002);

M aynard v. Boone, 468 F.3d 665, 677-78 (10th Cir. 2006). Under the

Jackson standard, habeas relief may only be granted if “no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.” Spears, 343 F.3d at

1238.

        As the district court found, the Kansas Court of Appeals applied the

Jackson standard as identified and described in State v. M ason, 986 P.2d 387, 389

(K an. 1999). Thus, M r. Jones must show that the Kansas Court of Appeals

unreasonably applied the standard. A review of C.F.’s testimony shows that (1)

she found herself in a motel room with four men, (2) two of those men held her

down on a bed, (3) M r. Jones and another man stood at the foot of the bed, (4) she

was raped by two different men, and (5) that the two men holding her down never

let go. Accordingly, she reasoned that M r. Jones had to be one of the two men



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who raped her. This testimony established all the elements of rape under Kansas

law: that M r. Jones had intercourse with C.F., without her consent, and when she

was overcome by fear or force. See Kan. Stat. Ann. § 21-3502(a)(1)(A).

      The witnesses offered by M r. Jones only attacked the credibility of C.F.

None were present at the time of the rape. The trial court made a credibility

determination that C.F. was telling the truth and that determination is owed great

deference. See Patton v. Yount, 467 U.S. 1025, 1038 (1984); M arshall v.

Lonberger, 459 U.S. 422, 434 (1983). The testimony of the victim in this case is

not inherently incredible or contradicted by objective evidence such that it could

not support a finding of each essential element beyond a reasonable doubt. Given

our standard of review, we do not think that the district court’s resolution of M r.

Jones’ sufficiency of the evidence claim is reasonably debatable.

      W e DENY a COA, DENY IFP status, and DISM ISS the appeal.

                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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