                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          AUG 8 2002

                                TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk


 RICHARD D. SULLIVAN,

          Petitioner - Appellant,
                                                      No. 02-3119
 v.
                                               (D.C. No. 01-CV-3232-DES)
                                                       (D. Kansas)
 L. E. BRUCE; CARLA STOVALL,
 Attorney General of Kansas,

          Respondents - Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


      Richard Sullivan was convicted by a state court jury of attempted rape and

aggravated burglary. After his conviction was affirmed on direct appeal, he

brought this petition raising ten grounds for relief under 28 U.S.C. § 2254. The

matter was referred to a federal magistrate judge, who dismissed three of the


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
claims as unexhausted and recommended that relief on the remaining claims be

denied. 1 The district court adopted the recommendation and dismissed the

petition on the merits. The court also denied Mr. Sullivan’s request for a

certificate of appealability (COA). Mr. Sullivan appeals, renews his request for

COA, and requests that counsel be appointed to represent him. We deny his

request for a COA, dismiss his appeal, and deny as moot his request for

appointment of counsel.

      Mr. Sullivan’s habeas petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA). Review of his claims is

therefore governed by its provisions. See Wallace v. Ward, 191 F.3d 1235, 1240

(10th Cir. 1999). Under AEDPA, Mr. Sullivan is not entitled to relief unless the

state court decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination

of the facts in light of the evidence presented at trial,” id. § 2254(d)(2). If the


      1
         The state contended below that three of Mr. Sullivan’s remaining claims
were also unexhausted. Mr. Sullivan had apparently attempted to file a petition
for state post-conviction relief raising these claims. The petition was returned to
him unfiled with a hand-written notation by the chief judge informing Mr.
Sullivan that the issues he sought to raise had already been presented in his direct
appeal. It appears that only one of the three issues the state asserts are not
unexhausted was in fact included in Mr. Sullivan’s direct appeal. The magistrate
judge concluded that judicial efficiency would best be served in these unique
circumstances by proceeding to the merits. We agree.

                                          -2-
state court has not addressed the merits of a claim, we review the district court’s

legal conclusions de novo and its fact findings, if any, for clear error. See

Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001).

      On appeal, Mr. Sullivan contends his rights to due process and equal

protection were violated because the jury instructions did not require the jury to

reach a unanimous decision as to the overt act required to prove attempted rape.

This claim is without merit. It is settled law that when a single crime can be

committed by various means, the jury need not unanimously agree on which

means were used so long as they agree that the crime was committed. Schad v.

Arizona, 501 U.S. 624, 631-32 (1991); see also id. at 649 (Scalia, J., concurring

in judgment) (“it has long been the general rule that when a single crime can be

committed in various ways, jurors need not agree upon the mode of commission”);

see also United States v. Powell, 226 F.3d 1181, 1196 (10th Cir. 2000).

      Mr. Sullivan also asserts his constitutional rights were violated when the

state trial judge failed to instruct on a lesser included offense. This claim is

similarly lacking in merit. “[A] petitioner in a non-capital case is not entitled to

habeas relief for the failure to give a lesser-included offense instruction ‘even if

in our view there was sufficient evidence to warrant the giving of an instruction

on a lesser included offense.’” Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993)

(quoting Chavez v. Kirby, 848 F.2d 1101, 1103 (10th Cir. 1998)).


                                          -3-
      Mr. Sullivan raises several arguments in connection with the charging

documents filed against him in state court and with his failure to receive a second

preliminary hearing upon the filing of an amended complaint. After Mr.

Sullivan’s preliminary hearing on the original information, he moved to dismiss

on the ground that it failed to allege the elements of attempted rape. Upon the

filing of an amended complaint, the trial court overruled Mr. Sullivan’s objection

and his motion for a new preliminary hearing. The state appellate court

concluded that the original information was defective, but held that state law

permitted an amendment and that Mr. Sullivan suffered no prejudice from the

denial of his motion to dismiss the original one. The court further concluded that

Mr. Sullivan’s constitutional rights were not violated by the failure to provide him

a second preliminary hearing since Mr. Sullivan did not challenge the sufficiency

of the amended complaint.

      We agree that no constitutional violations arose in connection with Mr.

Sullivan’s pretrial proceedings. Mr. Sullivan has not presented any argument or

evidence tending to show that his defense was in any way prejudiced by the filing

of an amended information and the failure to receive a second preliminary

hearing. The pretrial proceedings as a whole adequately informed Mr. Sullivan of

the charges, witnesses, and evidence against him well before trial. His attack on

the technical validity of the preliminary hearing became harmless error and


                                         -4-
unreviewable after the jury found him guilty after trial. See United States v.

Mechanik, 475 U.S. 66, 73 (1986); United States v. Taylor, 798 F.2d 1337, 1339

(10th Cir. 1986).

      Mr. Sullivan complains that the jury was biased against him on the basis of

his race and ethnic background, and that he was denied his constitutional right to

a jury of his peers. In order to establish such a claim, Mr. Sullivan must present

evidence that the jurors sitting on his case acted with discriminatory purpose, see

Meeks v. Moore, 216 F.3d 951, 967 (11th Cir. 2000), or that invidious

discrimination infected the jury selection process, see Hirst v. Gertzen, 676 F.2d

1252, 1260 (9th Cir. 1982). Mr. Sullivan has failed to allege any facts showing

intentional discrimination in either the jury selection process or on the part of the

jurors in his case. Accordingly, the district court properly rejected this claim.

      Finally, Mr. Sullivan contends his conviction violated due process because

the state presented no DNA evidence to support it. The constitution does not

require an attempted rape conviction to be supported by DNA evidence. The

district court construed this claim as challenging the sufficiency of the evidence

and rejected it, pointing out that the victim’s testimony was sufficient to allow the




                                          -5-
jury to find Mr. Sullivan guilty of attempted rape beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979). 2 We agree.

      Mr. Sullivan has moved this court for a COA, which requires that he make

a substantial showing of the denial of a constitutional right. See Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). To satisfy this standard, he must show

that reasonable jurists would find the district court’s decision debatable or wrong.

Id. at 484. Because Mr. Sullivan has failed to do so, we DENY his motion for a

COA and DISMISS his appeal.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




      2
         In ruling on this matter, the magistrate judge stated that the victim
testified Mr. Sullivan had tried to remove her pants. The state appellate court
stated that when the victim refused Mr. Sullivan’s solicitation of sex, he forced
his way into her apartment, struggled with her, and attempted to remove her pants
while cornering her between the front door and a wall.

                                         -6-
