                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 19, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 DENNIS BROW N,
               Petitioner-Appellant,                      No. 06-3430
          v.                                      (Case No. 06-CV-3092-W EB)
 DA VID R . M cKU NE; ATTO RN EY                           (D . Kan.)
 GEN ERAL O F KANSAS,
               Respondents-Appellees.



                                       OR DER *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      In this pro se § 2254 prisoner appeal, Petitioner challenges his state court

conviction on five counts of aggravated robbery, one count of criminal threat, and

one count of obstruction of official duty. Petitioner claimed in his habeas petition

that his conviction was unconstitutional because there was insufficient evidence

to support his conviction and because he received ineffective assistance of

counsel. The district court denied his petition and his request for a certificate of

appealability (“COA”). In his COA application to this court, Petitioner only

raises the ineffective assistance claim.



      *
        This order is not binding precedent, except under the doctrines of law of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.
      To obtain a COA, Petitioner must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to meet this burden,

Petitioner must demonstrate “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 issues presented were adequate to deserve encouragement to

proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation

omitted).

      Petitioner argues that his trial counsel provided ineffective assistance by

failing to raise the issue of marital privilege in order to prevent the use of

testimony from Petitioner’s alleged common-law wife. Petitioner first raised this

issue in a state collateral attack on his conviction. After reviewing portions of the

trial transcript and hearing testimony from Petitioner, his mother, his alleged

comm on-law wife, and his trial counsel, the state district court determined that

trial counsel could not have succeeded in invoking the marital privilege because

the evidence did not show the existence of a common-law marriage at the time of

trial. This decision was affirmed by the state appellate court. Because “it is not

the province of a federal habeas court to reexamine state-court determinations on

state-law questions,” Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991), we will not

reconsider the state courts’ determination that there was no comm on-law marriage

at the time of trial. Accordingly, we agree with the district court that it would

have been futile for counsel to argue that the marital privilege applied and, as a

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result, that counsel was not ineffective for failing to raise this issue. See

Strickland v. Washington, 466 U.S. 668, 687 (1984).

      W e have carefully reviewed Petitioner’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standard for the grant of a

COA. For substantially the reasons set forth by the district court, we DENY

Petitioner’s request for a COA and DISM ISS the appeal. W e do, however,

G R A N T Petitioner’s motion for leave to proceed on appeal in form a pauperis.



                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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