                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     August 17, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court

 A LBER T L. B OSC H,

       Petitioner - A ppellant,                        No. 06-3040
                                                (D.C. No. 05-CV -3046-JW L)
 v.                                                      (D . Kan.)

 DAVID R. M CKUNE, W arden,
 Lansing Correctional Facility; PH IL
 KLIN E, Kansas A ttorney General,

       Respondents - Appellees.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Petitioner-Appellant Albert L. Bosch, a state inmate proceeding pro se,

seeks a certificate of appealability (COA) allowing him to appeal the district

court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. M r. Bosch has failed to make “a substantial showing of the denial of a

constitutional right” as required by 28 U.S.C. § 2253(c)(2), and accordingly, w e

deny his request and dismiss the appeal.

      On June 17, 1998, M r. Bosch broke into, and entered, the screened porch

and attached garage of Sharon M cDaniels. He stole her w eed-eater and an air

compressor, and drove away. As he was leaving, M s. M cDaniels informed her
fiancé of the theft, and he called the police. Officer Bohlender of the Tulsa

Police Department, driving to work in plain clothes, heard the police dispatch

regarding the robbery. Despite the fact that the location was beyond his

jurisdiction, he was nearby and drove to the scene. As he arrived, he observed a

vehicle driving away. He followed the speeding vehicle for some time, and when

he caught up he placed a portable “Kojak” emergency light atop his vehicle and

pulled the suspect over.

      After he stopped his vehicle, the suspect backed into the officer’s vehicle.

The suspect then fled, with the officer in pursuit. The officer testified that the

suspect’s vehicle came at him several times, with the officer discharging his

weapon in an attempt to stop it. Later, police found the suspect’s vehicle and

connected it to M r. Bosch. M s. M cDaniels also identified M r. Bosch as the thief.

      M r. Bosch was convicted by a jury in Kansas state court of attempted

second-degree murder, aggravated burglary, aggravated battery, three counts of

criminal damage, and reckless driving, and was sentenced to 776 months

imprisonment. He appealed, and his conviction was affirmed by the state court of

appeals, and the state supreme court denied review . M r. Bosch also filed a state

habeas petition, the state district court denied it, the denial was affirmed by the

state court of appeals, and the state supreme court denied review.

      On appeal from the denial of his federal habeas petition, M r. Bosch raises

seven arguments: (1) his Sixth and Fourteenth Amendment rights were violated

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when the trial court failed to instruct the jury on his requested aggravated battery

instructions as a lesser included offense of first degree attempted murder; (2) his

Sixth and Fourteenth Amendment rights were violated by the manner in which the

court responded to a jury query; (3) insufficient evidence supports his conviction

for attempted murder; (4) he was denied his “constitutionally protected right to

present his defense” because the police department destroyed his vehicle, which

he contends contained exculpatory evidence; (5) his sentence is constitutionally

impermissible and shocks the conscience; (6) he received ineffective assistance of

trial counsel by (a) not calling certain witnesses and introducing certain evidence,

(b) persuading M r. Bosch not to testify, (c) failing to file a motion in limine

concerning the officer’s legal status, (d) having a conflict of interest with M r.

Bosch due to mental disability, (e) failing to object to jury instruction number 26,

(f) imposing a guilt-based defense, (f) failing to object to a selective and

discriminatory prosecution; (7) he received ineffective assistance of appellate

counsel; and (8) the federal district court failed to consider newly found evidence.

      In order for this court to grant a COA, M r. Bosch must make “a substantial

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

the district court has rejected M r. Bosch’s constitutional claims on the merits, he

must demonstrate that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. M cDaniel,

529 U.S. 473, 484 (2000). W here the district court has rejected M r. Bosch’s

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constitutional claims on procedural grounds, he must demonstrate that “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

      W ith regards to those claims presented to the Kansas state courts (either on

direct appeal or on post-conviction appeal) and were denied, the district court

could not properly issue a writ of habeas corpus unless it found that the state

court adjudication resulted in a decision that “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); W illiams v.

Taylor, 529 U .S. 362, 412-13 (2000). It is against these standards that we assess

the district court’s denial of M r. Bosch’s federal petition.

      Having carefully reviewed the district court’s analysis of M r. Bosch’s

claims on appeal, as well as the record proper, we conclude that our standard of

review precludes us from arriving at a conclusion at variance with the conclusion

of the district court. O n those claims implicating federal constitutional rights, w e

are persuaded that the state courts’ conclusions were not contrary to and did not

involve an unreasonable application of clearly established federal law. 28 U.S.C.

§ 2254(d)(1). The district court addressed M r. Bosch’s claims, and we do not

find that “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. Accordingly,

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we conclude that none of Mr. Bosch’s claims suffice to make a substantial

showing of a denial of a constitutional right. Suffice it to say that the claim of

newly found evidence does not involve material evidence. Accordingly, for

substantially the reasons given by the district court, we DENY a COA and

DISM ISS the appeal.

      A ll pending motions are D ENIED.

                                               Entered for the Court



                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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