                   UNITED STATES CO URT O F APPEALS

                                 TENTH CIRCUIT



 W ILL A . WIM B LEY ,

              Petitioner - A ppellant,                    No. 05-3311
       v.                                                  D. Kansas
 RO GER W ERH OLTZ; ATTO RN EY                   (D.C. No. 04-CV-3320-M LB)
 GEN ERAL O F KANSAS,

              Respondent - Appellee.



                                      OR DER
                               Filed October 18, 2006


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      This matter is before us on Petitioner-Appellant W ill A. W imbley’s Petition

for Rehearing and Rehearing En Banc. W e GRANT M r. W imbley’s petition for

rehearing in part for the purpose of modifying the paragraph ending on page 7 by

replacing what was the last sentence of the paragraph by two new sentences. The

Order Denying Certificate of Appealability issued June 30, 2006, is vacated and

replaced with the amended Order D enying Certificate of Appealability attached to

this Order.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge
                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      October 18, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 W ILL A . WIM B LEY ,

                 Petitioner - Appellant,                No. 05-3311
          v.                                              D. Kansas
 RO GER W ERH OLTZ; ATTO RN EY                  (D.C. No. 04-CV-3320-M LB)
 GEN ERAL O F KANSAS,

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      In 1999 W ill W imbley was charged in an information with first-degree

murder and criminal possession of a firearm, and was convicted on both counts by

a jury in Kansas state court. He was sentenced to life in prison. Represented by

counsel, he appealed his conviction to the Kansas Supreme Court. It affirmed.

State v. Wimbley, 26 P.3d 657 (Kan. 2001). He then initiated state habeas



      *
       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.
proceedings. See Kan. Stat. Ann. § 60-1507. The state habeas court denied

relief, the K ansas C ourt of A ppeals affirmed, and the K ansas Supreme Court

denied review.

      On September 24, 2004, he filed in the United States District Court for the

District of Kansas a pro se application for relief under 28 U.S.C. § 2254. His

application raised the following claims of error: (1) prosecutorial misconduct

during closing argument; (2) constructive amendment of the information; (3)

ineffective assistance of trial counsel for failing to object to the constructive

amendment of the information; (4) ineffective assistance of trial counsel for

failing to move for a mistrial based on juror misconduct; (5) ineffective assistance

of counsel on his direct appeal in state court; (6) insufficiency of the evidence;

(7) error in admitting evidence of prior acts of domestic violence; (8) several

other instances of ineffective assistance of trial counsel relating to the DNA

evidence, and (9) juror misconduct. The district court denied the first five claims

because they had not been exhausted in state court and were now procedurally

barred. It denied the other claims on the merits. The court also denied a

certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring COA).

      M r. W imbley now seeks a COA from this court on these same claims, with

the exception of his claim of ineffective assistance of counsel relating to the D N A

evidence. We deny a C OA .




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II.   D ISC USSIO N

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “W here a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

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

                                          -3-
clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

              Under the “contrary to” clause, we grant relief only if the state
      court arrives at a conclusion opposite to that reached by the Supreme
      Court on a question of law or if the state court decides a case
      differently than the [Supreme] Court has on a set of materially
      indistinguishable facts. Under the “unreasonable application” clause,
      relief is provided only if the state court identifies the correct
      governing legal principle from the Supreme Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s case.
      Thus w e may not issue a habeas w rit simply because we conclude in
      our independent judgment that the relevant state-court decision
      applied clearly established federal law erroneously or incorrectly.
      Rather, that application must also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks

and citations omitted). Therefore, for those of M r. W imbley’s claims that were

adjudicated on the merits in state court, “A EDPA’s deferential treatment of state

court decisions must be incorporated into our consideration of [his] request for

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      Three of the claims for which M r. W imbley seeks a COA border on the

frivolous. The district court thoroughly addressed the contentions that (1) there

was insufficient evidence of guilt, (2) the domestic-violence evidence rendered

the trial unfair, and (3) a juror’s misconduct tainted the verdict. Each of these

claims was also addressed and rejected on the merits by the Kansas Supreme



                                          -4-
Court on direct appeal. See Wimbley, 26 P.3d 657. No reasonable jurist could

dispute the district court’s denial of relief. W e therefore deny a COA on these

claims.

      The district court held that the remaining claims for which M r. W imbley

seeks a COA were unexhausted, see 28 U.S.C. § 2254 (b)(1)(A ) (§ 2254 writ

“shall not be granted unless it appears that . . . the applicant has exhausted the

remedies available in the courts of the State”), but that under Kansas law no

further proceedings w ere available in state court, and that the claims should

therefore be considered exhausted and procedurally barred for habeas purposes.

See Thom as v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (“[I]f a petitioner

‘failed to exhaust state remedies and the court to which the petitioner would be

required to present his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred’ the claims are considered exhausted and

procedurally barred for purposes of federal habeas relief.” (quoting Coleman v.

Thom pson, 501 U.S. 722, 735 n.1 (1991)). M r. W imbley contends that the claims

were presented in state court, and that, in the alternative, Kansas law would

permit him to raise them now if given the opportunity. Rather than wade into the

thickets of Kansas habeas corpus procedure to determine whether these claims

could be raised again, however, we will address them on the merits to determine

whether M r. W imbley has made a substantial showing of the denial of a

constitutional right. See Spears v. M ullin, 343 F.3d 1215, 1234 (10th Cir. 2003)

                                          -5-
(“W e may deny relief on the merits of a claim even if that claim has not been

exhausted in state court.” (citing 28 U.S.C. § 2254(b)(2))).

      The first is a claim of prosecutorial misconduct.

              W hen a defendant asserts claims of prosecutorial misconduct
      in a habeas petition, those claims are reviewed for a violation of due
      process. . . . To be entitled to relief, a defendant must establish that
      the prosecution’s conduct or remarks so infected the trial w ith
      unfairness as to make the resulting conviction a violation of due
      process. Such a determination may be made only after taking notice
      of all the surrounding circumstances, including the strength of the
      state’s case.

Hamilton v. M ullin, 436 F.3d 1181, 1187 (10th Cir. 2006) (internal quotation

marks, citations, and brackets omitted).

      M r. W imbley contends that the prosecutor misstated the law on

premeditation during closing argument. The jury instructions stated: “A s used in

this instruction, ‘premeditation’ means to have thought the matter over

beforehand.” R. Vol. I at 204. Elaborating on the instruction, the prosecutor

stated:

      The instruction says that premeditation . . . . [m]eans to have thought
      over the matter beforehand. . . . It doesn’t require somebody going
      home and writing out what they are going to do. . . . Premeditation
      requires no specific time period. That’s what the law is. . . . It can
      be a thought. Just like that (indicating).”

R. Vol. XVI at 969-70. Although the prosecutor’s statement that

“[p]remeditation requires no specific time period” did not misstate the law, see

State v. Moncla, 936 P.2d 727, 738 (Kan. 1997), his additional statement that



                                           -6-
premeditation “can be a thought[,] [j]ust like that,” would likely be disapproved

in Kansas, see id. (disapproving jury instruction that said premeditation “may

arise in an instant.” (internal quotation marks omitted)). Nevertheless, this was a

statement by a prosecutor, not the court’s instruction. The instruction was

correct. See Wimbley, 26 P.3d at 663-64. Jurors are presumed to follow

instructions. See Hale v. Gibson, 227 F.3d 1298, 1325 (10th Cir. 2000). For

essentially this reason, the Kansas Supreme Court rejected this claim by

M r. W imbley on direct appeal. See Wimbley, 26 P.3d at 663-64. In our view, no

reasonable jurist could determine that this rejection constituted an unreasonable

application of federal law.

      M r. W imbley also contends that the prosecutor’s comment on a w itness’s

veracity constituted prosecutorial misconduct. The prosecutor stated: “They talk

about Curtis Langford. Curtis Langford is a liar. Curtis Langford is probably

involved with cleaning the body up, cleaning the evidence up. He’s a liar.”

R. Vol. XVI at 1007. These statements did not deprive M r. W imbley of a fair

trial. “W e have not . . . established that referring to [a defendant’s] testimony as

a lie constitutes per se prosecutorial misconduct.” United States v. Hernandez-

M uniz, 170 F.3d 1007, 1012 (10th Cir. 1999). The chance of improper prejudice

is even less when the alleged liar is a witness other than the defendant. And the

impropriety lies not in the prosecutor’s commenting on the evidence at trial but in

the potential suggestion that the prosecutor is speaking from knowledge gained

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outside the trial. Here, however, the prosecutor was commenting on the evidence

at trial. He summarized some of the evidence regarding M r. Langford and

concluded by saying, “So you can give w hat credit and weight to whatever a

witness testifies.” R. Vol. XVI at 1007. M oreover, the jury was instructed, “It is

for you to determine the weight and credit to be given the testimony of each

witness. You have a right to use common knowledge and experience in regard to

the matter about which a witness has testified,” R. Vol. I at 201, and,

“Statements, arguments, and remarks of counsel are intended to help you in

understanding the evidence and in applying the law, but they are not evidence.”

Id. at 200. Because M r. W imbley has not made a substantial showing of the

denial of a constitutional right on his prosecutorial-misconduct claim, we deny a

COA on that claim.

      M r. W imbley further contends that a jury instruction constructively

amended the information on the firearms charge, and that his trial counsel was

ineffective for failing to object to the instruction. “A n indictment is

constructively amended if the evidence presented at trial, together with the jury

instructions, raises the possibility that the defendant was convicted of an offense

other than that charged in the indictment.” Hunter v. New M exico, 916 F.2d 595,

599 (10th Cir. 1990) (internal quotation marks omitted). According to M r.

W imbley, “The Information charged that petitioner did then and there unlaw fully

possess the firearm . . . , however, the trial court in its instructions to the jury

                                           -8-
charged that he knowingly possessed the gun found. ‘Knowingly’ possessing a

firearm was not alleged inside of the information.” R. U.S.D.C. (D. Kan),

No. 04-3320, Vol. 2 Doc. 2 at 50 (M emo. in Supp. of Pet. for W rit of Habeas

Corpus (Sept. 24, 2004)). This constructive amendment, he contends, violated the

Grand Jury Clause of the Fifth Amendment. See Stirone v. United States,

361 U.S. 212, 215-16 (1960) (“[A]fter an indictment has been returned its charges

may not be broadened through amendment except by the grand jury itself.”). But

that Clause does not apply to state prosecutions. See Hunter, 916 F.2d at 598 n.5

(“In federal cases, charges may not be broadened once they are returned except by

grand jury. Because this case involves a state court conviction originally filed by

information, this aspect of the prohibition does not apply here.” (internal citation

omitted)).

      In addition, however, he also contends that this instruction violated his

Sixth Amendment right “to be informed of the nature and cause of the

accusation.” U.S. Const. amend. VI. W e have held that a “fatal variance”

betw een the indictment and the proof at trial denies a defendant this right.

Hunter, 916 F.2d at 598. But not every variance between the indictment or

information and the jury instructions is “fatal.”

            A simple variance occurs when the charging terms are
      unchanged, but the evidence at trial proves facts materially different
      from those alleged in the indictment. This type of variance triggers
      harmless error analysis.



                                         -9-
            W here a simple variance exists, convictions generally have
      been sustained as long as the proof upon which they are based
      corresponds to an offense that was clearly set out in the indictment.
      Such a variance is fatal only when the defendant is prejudiced in his
      defense because he cannot anticipate from the indictment what
      evidence will be presented against him or is exposed to the risk of
      double jeopardy.

Id. at 598-99 (internal quotation marks and citations omitted); see also United

States v. Bailey, 327 F.3d 1131, 1142 (10th Cir. 2003) (“A variance arises when

the evidence adduced at trial establishes facts different from those alleged in the

indictment, and denigrates the Sixth Amendment right ‘to be informed of the

nature and cause of the accusation.’” (internal quotation marks omitted)).

M r. W imbley was not deprived of his right to notice of the charges against him.

He “has shown no prejudice to his ability to defend himself at trial, to the general

fairness of the trial, or to the indictment’s sufficiency to bar subsequent

prosecutions.” United States v. M iller, 471 U.S. 130, 138 n.5 (1985). If

anything, the jury instruction narrowed the indictment by requiring that the jury

find that M r. W imbley “knowingly” possessed the firearm. See id. at 134-35

(1985) (defendant has sufficient notice of charges against him when proof at trial

is narrower than charges brought in indictment); see also M cCoy v. United States,

266 F.3d 1245, 1254 (11th Cir. 2001) (proving precise drug quantity not alleged

in indictment “if anything, narrows the allegations of the indictment to that

amount” and does not warrant reversal); United States v. Castro, 776 F.2d 1118,

1123 (3d Cir. 1985) (“Although this case presents a variance between the

                                         -10-
indictment and the evidence produced at trial, we find that the variation did not

broaden the bases for conviction, but instead narrowed the scope of the evidence

to prove an offense included in the indictment.”). Nor was his counsel ineffective

for failing to raise this meritless claim. See United States v. Cook, 45 F.3d 388,

393 (10th Cir. 1995) (failure to raise a meritless issue “does not constitute

constitutionally ineffective assistance of counsel” (internal quotation marks

omitted)). In sum, M r. W imbley has not made a substantial showing of the denial

of a constitutional right, so we deny a COA on this claim as well.

      Next, M r. W imbley contends that his “trial counsel was ineffective for

failing to move for a mistrial based on juror misconduct.” Aplt. Br. at 14. But

we have already determined that M r. W imbley’s juror-misconduct claim is

meritless, and therefore he does not have a claim for ineffective assistance. See

Cook, 45 F.3d at 393. W e deny a COA on this claim.

      M r. W imbley also claims that his appellate counsel was ineffective for

failing to raise a Fourth Amendment challenge to the search of M r. W imbley’s

sometime residence. W e have reviewed the trial court’s thorough ruling on

M r. W imbley’s motion to suppress. M r. W imbley points to no error in the court’s

ruling. He has not made a substantial showing that he was denied effective

assistance of appellate counsel by the failure to raise on appeal a challenge to the

denial of his motion to suppress. W e therefore deny a COA on this claim also.




                                         -11-
      Finally, M r. W imbley contends that his appellate counsel rendered

ineffective assistance by failing to raise the juror-misconduct, prosecutorial-

misconduct, and constructive-amendment claims on appeal. Because these

underlying claims are without merit, M r. W imbley’s appellate counsel was not

ineffective for failing to raise them. See id. at 393. No reasonable jurist could

find otherw ise, so we deny a COA on these claims.

      W e GRANT the pending motion by M r. W imbley to supplement his

opening brief, DENY a COA, and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                        -12-
