                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 10, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 JAMES ERIC KENNEDY,

       Petitioner - Appellant,
                                                         No. 14-5040
 v.                                         (D.C. No. 4:11-CV-00162-TCK-TLW)
                                                         (N.D. Okla.)
 MIKE ADDISON, Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Petitioner-Appellant James Eric Kennedy, an Oklahoma state inmate

proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. We deny his request and dismiss the appeal.



                                    Background

      Following a jury trial in state court, Mr. Kennedy was found guilty of

sexually abusing a minor in violation of Okla. Stat. tit. 10, § 7115(E). 2R 600.

He was sentenced to life imprisonment. 2R 600.

      Mr. Kennedy appealed his conviction under one theory: the trial court erred
by conducting portions of voir dire in chambers in Mr. Kennedy’s absence,

violating his right to be present at trial. 1R 72, 125. The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed the judgment and sentence in a summary

opinion, finding that Mr. Kennedy waived his right to be present because he never

asserted that right after the judge announced in open court his intention to speak

with several jurors—at their request—in chambers. 1R 73; see Kennedy v.

Oklahoma, No. F-2009-388 (Okla. Crim. App. June 22, 2010) (unpublished). The

OCCA also found that Mr. Kennedy failed to demonstrate specific prejudice

caused by his absence. 1R 74. Rather, of the six jurors questioned, three were

excused, and of the remaining three, none had personal experience involving child

sexual abuse, and only one meeting “approached any issue relevant to this case.”

1R 74. Mr. Kennedy did not seek post-conviction relief. 1R 125.

      Mr. Kennedy filed a federal habeas petition raising the same claim of error.

Kennedy v. Addison, No. 11-CV-162-TCK-TLW, 2014 WL 1342967, at *1 (N.D.

Okla. April 3, 2014). The district court denied the petition. Id. at *6. Rather, in

applying the required deferential standard, the district court found that the

OCCA’s decision was not “contrary to, or [did not] involve[] an unreasonable

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

Court of the United States,” nor was it “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” Id.

at *2 (quoting 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13

                                        -2-
(2000)).

      Like the OCCA, the district court found that Mr. Kennedy waived his right

to attend the in-chambers voir dire. Id. at *5. Although Mr. Kennedy argued to

the district court that he was wearing a shock jacket and was told by a deputy that

he was not allowed in chambers, id. at *2-3, nothing in the record supported that

Mr. Kennedy was somehow prevented from attending, id. at *5.

      The district court also concluded that if Mr. Kennedy’s constitutional right

was violated, the error was harmless. Id. at *6. Mr. Kennedy was present for the

rest of voir dire, his counsel was present during the in-chambers voir dire, and

Mr. Kennedy had ample opportunity to confer with his counsel and ask questions

or use peremptory strikes as he saw fit. Id. Thus, nothing in the record indicated

that the absence affected Mr. Kennedy’s ability to defend himself. Id.

      The district court also found that an evidentiary hearing was not warranted,

as Mr. Kennedy failed to meet his burden showing entitlement. Id. at *2. Mr.

Kennedy renews his claim on appeal.



                                     Discussion

      In order for this court to grant a COA, Mr. Kennedy must make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), such 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

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issues presented were adequate to deserve encouragement to proceed further,”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation

marks omitted). In addressing this question, we review Mr. Kennedy’s pro se

filing with special solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153

n.1 (10th Cir. 2007). Because the district court rejected Mr. Kennedy’s

constitutional claim on the merits, he must demonstrate that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484.

      We have carefully reviewed Mr. Kennedy’s opening brief and application

for a COA, the district court’s analysis, and the record. Based on this review, we

conclude that Mr. Kennedy fails to make a substantial showing of a denial of a

constitutional right and that no reasonable jurist could debate the correctness of

the district court’s decision. Under the circumstances of this case, Mr. Kennedy

waived his right to be present at in-chambers voir dire because he never asserted

it. United States v. Gagnon, 470 U.S. 522, 528-29 (1985); see also Bland v.

Sirmons, 459 F.3d 999, 1021 (10th Cir. 2006).

      We also agree with the district court that an evidentiary hearing is not

warranted. 1R 126. Mr. Kennedy did not develop his factual claim about the

deputy’s use of a shock jacket in state court, 1R 30-52, and he has not




                                        -4-
demonstrated entitlement under 28 U.S.C. § 2254(e)(2)(B). 1 See also Cullen v.

Pinholster, 131 S. Ct. 1388, 1411 (2011) (Alito, J., concurring). Even assuming

the facts Mr. Kennedy claims are true, a defendant’s inability to observe

individual voir dire in order to possibly challenge a potential juror is not enough

to establish a constitutional error, see Bland, 459 F.3d at 1021, much less error

that calls into question the jury’s finding of guilt.

      Accordingly, we DENY a COA and DISMISS the appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
          28 U.S.C. § 2254(e)(2)(B) provides:

      If the applicant has failed to develop the factual basis of a claim in
      State court proceedings, the court shall not hold an evidentiary
      hearing on the claim unless the applicant shows that . . . the facts
      underlying the claim would be sufficient to establish by clear and
      convincing evidence that but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

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