                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 9, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 JAMES L. DORSEY,

       Petitioner - Appellant,
                                                        No. 08-3146
 v.                                             (D.C. No. 07-CV-03204-JWL)
                                                          (D. Kan.)
 DAVID R. MCKUNE, Warden,
 Lansing Correctional Facility;
 STEPHEN N. SIX, Attorney General
 of Kansas,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Defendant-Appellant James L. Dorsey, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. Because we conclude that Mr. Dorsey has

not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a COA and dismiss the appeal. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      Mr. Dorsey was convicted and sentenced to 45 months’ imprisonment on a

single count of aggravated indecent liberties with a child in violation of Kan. Stat.
Ann. § 21-3504. On direct appeal, the Kansas Court of Criminal Appeals

affirmed the conviction. See State v. Dorsey, No. 91,016, 2006 WL 619172 (Kan.

Ct. App. Mar. 10, 2006) (unpublished). The Kansas Supreme Court denied

review. Thereafter, Mr. Dorsey sought federal post-conviction relief asserting

nine claims for relief. Upon the district court’s denial of relief, see Dorsey v.

McKune, 553 F. Supp. 2d 1287 (D. Kan. 2008), Mr. Dorsey now requests a COA

from this court asserting that: (1) the prosecutor improperly vouched for the

credibility of the victim in her closing argument, (2) the trial court erred in

allowing certain expert testimony by a rebuttal witness for the prosecution, (3) the

trial court erred in granting the prosecution’s motion in limine, thus excluding

evidence of prior unfounded allegations of sexual abuse by the victim, (4) the

trial court erred in admitting Mr. Dorsey’s statements, which he claims were made

involuntarily and in violation of Miranda v. Arizona, (5) the trial court erred in

denying Mr. Dorsey’s motion for a new trial based on newly-discovered evidence,

and (6) the district court erred in determining that the cumulative effect of trial

errors did not deny Mr. Dorsey a fair trial.

      To obtain a COA from this court, Mr. Dorsey 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. Before a federal court may

grant relief on a claim adjudicated on the merits in state court proceedings, a

petitioner must demonstrate that the state court's decision on that claim was

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“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). “The

question . . . is not whether a federal court believes the state court's determination

was incorrect but whether that determination was unreasonable—a substantially

higher threshold.” Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007). After

reviewing the record proper, we DENY a COA substantially for the reasons set

forth in the district court’s well-reasoned opinion and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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