                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                     May 1, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 SHAWN ALDERSON,

               Petitioner - Appellant,                   No. 08-3332
          v.                                              (D. Kansas)
 STEPHEN N. SIX, Attorney General               (D.C. No. 99-CV-03397-SAC)
 for the State of Kansas; JOHNNIE
 GODDARD, Warden, Ellsworth
 Correctional Facility,

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10 Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Shawn Alderson, proceeding pro se, seeks a certificate of appealability

(“COA”) to enable him to appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. We deny him a COA and dismiss this

matter.



                                 BACKGROUND

      Alderson was convicted in 1995 of first degree felony murder in the

shooting death of Larry Goodwin, and of aggravated battery in the drive-by

shooting of Tyrone Elam. Alderson was initially sentenced to consecutive prison

terms of life and eighty-six months. On direct appeal, the Kansas Supreme Court

affirmed his conviction but vacated his sentences and remanded for resentencing.

State v. Alderson, 922 P.2d 435 (1996). He was resentenced to the same prison

terms by a different district court judge, and the Kansas Supreme Court affirmed.

State v. Alderson, 972 P.2d 1112 (1999).

      Alderson then sought post-conviction relief under Kan. Stat. Ann. § 60-

1507, arguing he had received ineffective assistance of counsel in various ways.

The state district court denied the motion without conducting an evidentiary

hearing. The Kansas Court of Appeals found Alderson’s motion had raised

substantial issues of fact on three issues and remanded the matter for an

evidentiary hearing. Alderson v. State, 78 P.3d 498 (Kan. Ct. App. 2003)

(unpublished). On remand, the district court denied relief on all claims and the

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Kansas Court of Appeals affirmed that decision. Alderson v. State, 138 P.3d 330

(Kan. Ct. App. 2006).

      Meanwhile, Alderson had filed the instant petition in December 1999,

alleging fifteen grounds for relief. Because eight of the fifteen claims were

unexhausted and because of the one-year time limitation of 28 U.S.C.

§ 2244(d)(1), the magistrate judge to whom the petition was submitted gave

Alderson the option of dismissing the unexhausted claims and proceeding with the

exhausted ones, or moving to stay the habeas action pending exhaustion of his

state remedies. Alderson moved to stay the federal proceedings so that he could

exhaust his state remedies on his three claims of ineffective assistance of trial

counsel. The district court granted the motion, and liberally construed it as

requesting dismissal of the remaining unexhausted claims.

      After the Kansas Court of Appeals affirmed the state district court’s denial

of post-conviction relief, Alderson, 138 P.3d 330, Alderson sought leave, in 2007,

to amend his habeas petition to add the newly exhausted claims asserted in his

original habeas petition and to add an additional exhausted claim, which he

inadvertently omitted from his original habeas petition, concerning the legality of

his upward durational departure sentence. Additionally, Alderson requested

reinstatement of his dismissed claim involving the constitutionality of the jury

instructions at trial, since that claim had actually been exhausted.




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      The district court set aside the voluntary dismissal of the jury instruction

claim, and permitted it to be reinstated in the appeal, but the court denied, without

prejudice, leave to amend the habeas petition to add the illegality-of-the-sentence

claim that had been fully exhausted in state court but not asserted in the original

habeas petition. More specifically, the district court found that Alderson was

attempting to raise an untimely new claim that did not clarify or amplify any

claim presented in the original habeas petition, and that the new claim would not

relate back to that petition. See Fed. R. Civ. P. 15(c). The court concluded that

consideration of the new claim required authorization from this court, pursuant to

28 U.S.C. § 2244(b)(3), and it transferred the new claim to us. See Coleman v.

United States, 106 F.3d 339, 341 (10 Cir. 1997) (per curiam). We denied

Alderson permission to file this second or successive claim, holding “he must

make a prima facie showing that the new claim is based on a new rule of

constitutional law or newly discovered evidence . . . [which] he cannot do, as he

was aware of the claim on direct appeal.” In re: Alderson, No. 08-3087, Order at

5 (10 Cir. May 21, 2008) (unpublished).

      Following these lengthy proceedings, eight grounds for relief were

ultimately presented to the district court below: (1) denial of a fair and impartial

trial by the trial judge’s refusal to recuse himself from presiding over Alderson’s

trial; (2) insufficient evidence to support Alderson’s felony murder conviction;

(3) improper conviction of felony murder because the underlying offense of

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criminal discharge of a firearm at an occupied vehicle merged into the felony

murder offense; (4) denial of the right to a defense because the trial court refused

to admit evidence of Goodwin’s prior aggravated-felony conviction; (5) denial of

Alderson’s request to sequester witnesses; (6) failure to instruct the jury on the

lesser included offense of felony murder; (7) cumulative error; and (8) ineffective

assistance of counsel.

      Applying the proper standards under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), the district court found “no error of

constitutional significance, and [found] the state courts’ resolution of petitioner’s

claims on the merits was not contrary to or an unreasonable application of clearly

established federal law as decided by the United States Supreme Court.”

Memorandum and Order at 16. The court accordingly denied Alderson’s habeas

petition. The court also denied Alderson a COA, but granted him the right to

proceed on appeal in forma pauperis.



                                   DISCUSSION

      “A COA is a jurisdictional pre-requisite to our review.” Clark v.

Oklahoma, 468 F.3d 711, 713 (10 Cir. 2006). We will issue a COA only if

Alderson makes a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make such a showing, he must establish that “reasonable

jurists could debate whether . . . the petition should have been resolved in a

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different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotations omitted). The district court declined to issue a COA, finding

Alderson had failed to make a substantial showing of the denial of a constitutional

right. We agree with the district court and find that, for substantially the reasons

set forth in the district court’s thorough opinion in this case, Alderson is not

entitled to a COA.



                                   CONCLUSION

      For the foregoing reasons, we DENY Alderson’s application for a COA and

DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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