                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAR 14 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 EDDIE BRUNSON, JR.,

          Petitioner-Appellant,
                                                               No. 99-3296
 v.                                                             (D. Kan.)
                                                       (D.Ct. Nos. 96-CV-3230-DES
 DAVID R. McKUNE, Warden, Lansing                                   &
 Correctional Facility; ATTORNEY GENERAL                    96-CV-3352-DES)
 OF THE STATE OF KANSAS,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and 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); 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          This order and judgment is not binding precedent except under the doctrines of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.
       Appellant Eddie Brunson, Jr., a state inmate appearing pro se, appeals the

district court’s decision dismissing his habeas corpus petition filed pursuant to 28

U.S.C. §2254. We deny Mr. Brunson’s request for a certificate of appealability

and dismiss the appeal.



       Mr. Brunson received a sentence of fifteen to sixty years in prison

following his conviction for three counts of aggravated burglary, two counts of

felony theft, and one count of misdemeanor theft. Mr. Brunson unsuccessfully

filed a direct appeal and later unsuccessfully sought post-conviction relief.



       In his federal habeas petition, Mr. Brunson contended the state trial court

erred in allowing the state to amend the charging complaint at the preliminary

hearing by adding additional offenses committed on a different day. 1 However,



       1
          The primary thrust of Mr. Brunson’s petition centered on his allegation of
ineffective assistance of counsel because his defense counsel failed to request a jury
instruction on the lesser-included offense at trial, and because his appellate counsel, in his
post-conviction proceedings, failed to raise or brief this error on appeal. The district
court determined Mr. Brunson defaulted these claims at the state level and failed to show
the requisite “cause and prejudice” or “manifest injustice” necessary for excusing his
default. Because Mr. Brunson does not raise his ineffective assistance of counsel claim
on appeal, we decline to address it. See Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (“Despite the liberal construction afforded pro se pleadings, the
court will not construct arguments or theories for the plaintiff in the absence of any
discussion of those issues.”)


                                             -2-
the federal district court determined his claim lacked merit because in his petition

Mr. Brunson alleged only that the state court failed to comply with state

procedure, but did not assert a deprivation of a fundamental right guaranteed by

the United States Constitution, as required for federal habeas corpus relief. The

district court also noted Kansas law allows amendment of a charging complaint

prior to trial if no prejudice occurs.



       In another, separately-filed federal habeas petition, Mr. Brunson also

alleged constitutional error because the state court refused to convert his sentence

to a determinative term under the Kansas Sentencing Guidelines Act of 1993,

K.S.A. §§ 21-4701 to 4728, enacted after his conviction. 2 However, the district

court determined Mr. Brunson’s claim lacked merit because prison officials and

the state court found Mr. Brunson’s criminal history made him ineligible for

sentence conversion under the guidelines, and based on the district court’s own

review of the applicable state law.




       2
         In this petition, Mr. Brunson also alleged ineffective assistance of appellate
counsel claiming his attorney failed to communicate his receipt of the Kansas Court of
Appeals decision, which resulted in Mr. Brunson’s inability to timely file a petition with
the Kansas Supreme Court on this issue. Because Mr. Brunson also does not raise this
ineffective assistance of counsel claim on appeal, we decline to address it.


                                            -3-
      On appeal, Mr. Brunson argues the district court erred in finding he did not

allege any deprivation of a fundamental constitutional right resulting from

improper amendment of the charging complaint. In support, Mr. Brunson

contends the prosecution’s amendment violated his Sixth Amendment rights by

failing to provide him with adequate notice of the new charges against him. He

also renews his contention the Kansas Sentencing Guidelines Act of 1993 applies

to him and therefore, the state must redetermine his sentence.



      We review the district court’s factual findings under a clearly erroneous

standard and its legal conclusions de novo. Rogers v. Gibson, 173 F.3d 1278,

1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). “We may not grant

habeas relief unless the state court’s decision was: ‘(1) ... contrary to, or involved

an unreasonable application of, clearly established federal law, ... or (2) resulted

in a decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.’” Id. (quoting 28 U.S.C.

§§ 2254(d)(1) and (d)(2)).



      Applying these standards, we have carefully reviewed the record and must

agree with the district court’s decision. First, with respect to the charging

complaint’s amendment, Mr. Brunson initially alleged in his petition only that the


                                          -4-
new charges “[a]ffected Petitioner’s substantial rights.” Even if we construe his

pro se petition liberally and determine this lone, conclusory allegation somehow

asserts a deprivation of a constitutional right, a review of the record clearly

establishes Mr. Brunson has not alleged any additional facts sufficient to show

any prejudice resulting from the amendment. While he now asserts, on appeal, a

violation of his Sixth Amendment rights based on a lack of notice, he fails to

otherwise show how this lack of notice detrimentally affected his defense.

Moreover, the Kansas Court of Appeals reviewed Mr. Brunson’s claim and

determined even if a showing of prejudice could be made, Mr. Brunson did not

assert any special circumstances excusing his failure to raise this issue on direct

appeal.



      Finally, with respect to Mr. Brunson’s claim that the state must redetermine

his sentence because the Kansas Sentencing Act applies to him, the district court

presented a comprehensive analysis as to why this claim lacked merit, and

therefore, we decline to duplicate its analysis here, other than to agree with the

district court’s conclusion.



      Under the circumstances presented, we conclude Mr. Brunson fails to make

a substantial showing of the denial of a constitutional right as required by 28


                                          -5-
U.S.C. § 2253(c)(2). Thus, for substantially the same reasons set forth in the

district court’s August 16, 1999 Memorandum and Order, we deny Mr. Brunson’s

application for a certificate of appealability and DISMISS his appeal.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                        -6-
