                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 11, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 JOHN L. W EEK S,

               Petitioner-A ppellant,                     No. 06-3228
          v.                                           District of Kansas
 DA VID R . M cKU NE and PHILL                     (D.C. No. 05-CV-3322-JTM )
 KLINE,

               Respondents-Appellees.



                                        OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      John L. W eeks, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that M r. W eeks has failed to make “a

substantial showing of the denial of a constitutional right,” we DENY his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
        M r. W eeks was convicted in Kansas state court of kidnaping, rape, and

criminal sodomy of three women in three separate incidents. The Kansas Court of

Appeals affirmed the convictions, but vacated an upward departure under the state

sentencing guidelines. The Kansas Supreme Court denied review. After

unsuccessfully pursuing state habeas relief, culminating in a denial of review by

the Kansas Supreme Court on June 5, 2005, M r. W eeks filed this petition in July

2005.

        M r. W eeks raised three issues: (1) that exclusion of alibi evidence for

failure to comply with state procedural notice rules violated his right to present a

defense under the Sixth and Fourteenth Amendments; (2) that the evidence was

insufficient to show that he had accomplished the kidnapings by means of force,

threat, or deception; and (3) that he had received ineffective assistance of counsel.

One of his claims of ineffective assistance, which was also brought as an

independent claim and addressed by the district court as such, see M emorandum

& Order, at 15, was based on prosecutorial misconduct and defense counsel’s

failure to object to it.

        W e have carefully examined M r. W eeks’s Application fora Certificate of

Appealability, the M emorandum and Order of the district court, and the record,

and conclude, for substantially the reasons stated by the district court, that no

reasonable jurist could find that M r. W eeks has satisfied the criteria for a COA.




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      Accordingly, we D EN Y John L. W eeks’ request for a COA and DISM ISS

this appeal. Petitioner’s motion to proceed in form a pauperis is also DENIED.

                                             Entered for the Court,

                                             M ichael W . M cConnell
                                             Circuit Judge




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