                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 24, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    PARRISH BOURNE,

                Petitioner-Appellant,

    v.                                                   No. 07-3228
                                                  (D.C. No. 05-CV-3363-JAR)
    STATE OF KANSAS; ATTORNEY                              (D. Kan.)
    GENERAL OF KANSAS,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges. **


         Parrish Bourne, a Kansas state prisoner represented by counsel, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

28 U.S.C. § 2254 petition for habeas relief from his Kansas conviction for

aggravated arson. See id. § 2253(c)(1)(A). Mr. Bourne is entitled to a COA only

if he has “made a substantial showing of the denial of a constitutional right.” Id.


*
       This order is not binding precedent except under the doctrines of law of the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.
**
       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.
§ 2253(c)(2). To make such a showing, he must demonstrate that “reasonable

jurists could debate whether . . . 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. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

      In his counseled habeas petition, Mr. Bourne contends correctional officers

denied him access to his attorney during the week preceding trial, thereby

denying him his rights to (1) effective assistance of counsel and (2) a fair trial.

The facts he provides in support of these two grounds for relief are identical. The

federal district court construed both “grounds [to] allege that petitioner was

denied his right to counsel under the Sixth Amendment when he was unable to

consult with his defense counsel the week before his trial commenced.” Aplt.

App. at B-7.

      In a thorough memorandum and order denying Mr. Bourne’s § 2254

petition, the district court set forth the facts and standard of review, and applied

the applicable law. In so doing, it observed:

      Petitioner states that he was ‘unable, as a direct result of the
      correctional officer’s actions, to pass on important information
      regarding his upcoming jury trial.’ Yet, petitioner does not explain
      what information he was prevented from relaying to his counsel, and
      he fails to explain how this caused him to suffer harm at his trial.
      Also, the record shows that petitioner was able to communicate
      freely with his counsel in the previous weeks leading up to trial,
      meaning that petitioner could have passed on this information to his
      counsel at that time. And further, petitioner was able to

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      communicate with his counsel on the Saturday before trial, and there
      is nothing in the record to indicate that petitioner was unable to give
      such information to his counsel at that time.

Id. at B-13 to B-14 (emphasis added).

      Having carefully considered the record, Mr. Bourne’s arguments on appeal,

and the applicable law, we conclude, for substantially the same reasons stated in

the district court’s memorandum and order, that Mr. Bourne has failed to make

the requisite showing. We therefore DENY his request for a COA and DISMISS

the appeal.



                                               Entered for the Court


                                               David M. Ebel
                                               Circuit Judge




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