                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 MARTIN JOSEPH ZIMMER,

       Petitioner-Appellant,
 v.                                                     No. 00-3031
                                                  (D.C. No. 99-3328-DES)
 DAVID R. McKUNE; ATTORNEY                               (D. Kan.)
 GENERAL OF KANSAS,

       Respondents-Appellees.


                                      ORDER
                                Filed June 26, 2000


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      This matter is before the court on Appellant’s petition for panel rehearing

filed June 8, 2000. The petition for rehearing is granted for the sole purpose of

revising the Order and Judgment to reflect the fact that Appellant’s second, third,

and fourth claims for relief are not faced with either procedural bar or exhaustion

obstacles. The petition is denied in all other respects. A revised order and

judgment is attached to this order.

                                      ENTERED FOR THE COURT

                                      Patrick Fisher, Clerk of Court

                                      By:   Keith Nelson
                                            Deputy Clerk
                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 26 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 MARTIN JOSEPH ZIMMER,

          Petitioner-Appellant,
 v.                                                     No. 00-3031
                                                  (D.C. No. 99-3328-DES)
 DAVID R. McKUNE; ATTORNEY                               (D. Kan.)
 GENERAL OF KANSAS,

          Respondents-Appellees.


                       REVISED ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      In 1999, Petitioner-Appellant Martin Joseph Zimmer filed a petition for

habeas corpus in the United States District Court for the District of Kansas

pursuant to 28 U.S.C. § 2254. The district court denied this petition and declined

to grant Mr. Zimmer a Certificate of Appealability (“COA”) to pursue these




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
claims on appeal. See 28 U.S.C. § 2253(c). Mr. Zimmer now requests this court

to grant a COA and reverse the district court’s judgment.

      Petitioner raises five issues on appeal: (1) sufficiency of the evidence

supporting his convictions of robbery and criminal deprivation of property in

Kansas state court; (2) prosecutorial misconduct for making comments directed at

the defendant’s credibility; (3) constitutional sufficiency of a jury instruction

characterizing the state’s burden of proof and the presumption of innocence; (4)

constitutional sufficiency of a jury instruction referring to the state’s burden to

prove each of its “claims” rather than the “elements of the offense”; (5)

ineffective assistance of appellate counsel for failing to raise claims (2), (3), and

(4) on direct appeal.

      We first note that the District Court of Mitchell County, Kansas,

considering Petitioner’s collateral attack under K.S.A. 60-1057 appears to have

addressed all of Petitioner’s claims on the merits, despite the fact that claims (2),

(3), and (4) were not raised on direct appeal. The Kansas Court of Appeals

summarily affirmed the lower court’s disposition. Accordingly, the petitioner is

not faced with either procedural bar or exhaustion obstacles. See Harris v. Reed,

489 U.S. 255, 263 (1989) (“[A] procedural default does not bar consideration of a

federal claim on either direct or habeas review unless the last state court




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rendering a judgment in the case clearly and expressly states that its judgment

rests on a state procedural bar.”) (quotations and citations omitted).

      Nevertheless, upon review of the record and the relevant case law, we

conclude that Mr. Zimmer has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we decline to grant a

COA. See id.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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