                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             FEB 24 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 TOMMY J. KOLB,

                Petitioner - Appellant,                   No. 99-8033
           v.                                            (D. Wyoming)
 WYOMING DEPARTMENT OF                              (D.C. No. 97-CV-288-J)
 CORRECTIONS and WYOMING
 ATTORNEY GENERAL,

                Respondents - Appellees.


                              ORDER AND JUDGMENT          *




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 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       This order and judgment is not binding precedent, except under the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.
      Tommy Kolb, a pro se Wyoming state prisoner, seeks a certificate of

appealability to appeal the district court’s denial of his 28 U.S.C. § 2254 motion.

Mr. Kolb was convicted in Wyoming state court of first degree murder and

aggravated kidnaping and was sentenced to two consecutive life terms. The

Wyoming Supreme Court affirmed his convictions on December 20, 1996. The

state district court denied his application for post-conviction relief and the

Wyoming Supreme Court denied his petition for review.

      Mr. Kolb filed his federal 28 U.S.C. § 2254 petition for a writ of habeas

corpus on December 4, 1997, alleging that (1) the state trial court abused its

discretion by refusing to allow expert testimony on the defense theory of the case,

(2) the trial court erred by failing to suppress the statements made by Kolb that

were obtained in violation of his constitutional rights, (3) the trial court erred by

admitting hearsay testimony of Carl Haler, (4) the evidence was insufficient to

support a conviction for first degree murder, (5) he was denied effective

assistance of counsel due to trial counsel’s deficient performance, and (6) he was

denied the right to a full and fair direct appeal from his convictions due to trial

counsel’s ineffectiveness, mistakes, and deficient performance. Issues 1 to 5

were the identical issues that the Wyoming Supreme Court rejected. In a detailed,

well-reasoned opinion, the district court rejected Kolb’s contentions and denied

his petition for writ of habeas corpus and for a certificate of appealability.


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       On appeal, Kolb raises the same issues and makes the same arguments that

he presented to the district court, arguing that the district court erred in not

granting him relief. He also contends that the district court erred by not holding

an evidentiary hearing. After careful review of the materials submitted by Kolb

and construing his complaint liberally,   see Haines v. Kerner , 404 U.S. 519, 520-

21 (1972), we conclude that the analysis and conclusions set forth in the district

court’s decision are correct.

       Regarding the evidentiary hearing claim, Kolb is entitled to a hearing only

if there is a factual dispute and if he did not receive a full and fair evidentiary

hearing in a state court.   See Miller v. Champion , 161 F.3d 1249, 1252-53 (10th

Cir. 1998). Mr. Kolb’s arguments were thoroughly considered by the state courts.

Further, “a determination of a factual issue made by a State court shall be

presumed to be correct.” 28 U.S.C. § 2254(e)(1). Following our review, we

agree with the district court that the issues raised by Kolb were properly resolved

on the basis of the record and the law and, as such, an evidentiary hearing was not

required. See Castro v. Ward , 138 F.3d 810, 832 (10th Cir. 1998).




                                           -3-
      Because Kolb has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY the request for a

certificate of appealability and DISMISS the appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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