                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALSNovember 5, 2013
                                                               Elisabeth A. Shumaker
                                    TENTH CIRCUIT                  Clerk of Court



 RICO L. GLYNN,

          Petitioner - Appellant,
                                                 Nos. 13-3154 and 13-3155
 v.                                          (D.C. Nos. 5:12-CV-03030-SAC &
                                                   5:12-CV-03031-SAC)
 JAMES HEIMGARTNER, Warden, El                           (D. Kan.)
 Dorado Correctional Facility;
 ATTORNEY GENERAL OF
 KANSAS,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges. **


      Petitioner-Appellant Rico L. Glynn seeks to appeal from the denial of his

petitions for habeas corpus relief arising from a multitude of state convictions in

two separate cases. 28 U.S.C. § 2254.

      No. 13-3154 involves a home invasion where Mr. Glynn was convicted in a


      *
        This order is not binding precedent, except under the doctrines of law of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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
jury trial of attempted first-degree murder, aggravated burglary, attempted

aggravated robbery, and aggravated battery. Mr. Glynn ordered a mother and her

two children to lie face down on the floor, cut the mother’s throat, and stabbed

her adult son when he attempted to intervene. He was sentenced to 620 months’

imprisonment. His convictions and sentences were affirmed on direct appeal,

State v. Glynn, 154 P.3d 1184, 2007 WL 1041759 (Kan. App. Apr. 6, 2007), and

the Kansas Supreme Court denied review. He then sought post-conviction relief,

Kan. Stat. Ann. § 60-1507, which was denied, and that denial was affirmed on

appeal, Glynn v. State, 255 P.3d 51, 2011 WL 2795775 (Kan. App. July 15,

2011), with the Kansas Supreme Court denying review. He then sought federal

habeas relief which was denied, Glynn v. Heimgartner, No. 12-3030-SAC, 2013

WL 2449540 (D. Kan. June 5, 2013), resulting in this appeal.

      No. 13-3155 involves a rape case where Mr. Glynn was convicted of

aggravated kidnaping, rape, and aggravated sodomy in connection with the

abduction of a university student in her truck. Mr. Glynn was sentenced to 620

months’ imprisonment. His convictions and sentences were affirmed on direct

appeal, State v. Glynn, 166 P.3d 1075 (Kan. App. 2007), and the Kansas Supreme

Court denied review. He then sought post-conviction relief, Kan. Stat. Ann. § 60-

1507, which was denied and that denial was affirmed on appeal, Glynn v. State,

255 P.3d 51, 2011 WL 2795775 (Kan. App. July 15, 2011), with the Kansas

Supreme Court denying review. He then sought federal habeas relief which was

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denied, Glynn v. Heimgartner, No. 12-3031-SAC, 2013 WL 2449545

(D. Kan. June 5, 2013), resulting in this appeal.

      Given the interrelated nature of the appeals, we will consolidate them for

purposes of the disposition. Fed. R. App. P. 3(b)(2). In both appeals, Mr. Glynn

argues that (1) his statements to police were coerced and should have been

suppressed, (2) his prior juvenile adjudications should not have been used to

enhance his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466

(2000), (3) his DNA was obtained in violation of the Fourth and Fifth

Amendments, and (4) both trial and appellate counsel in each case were

ineffective for various reasons.

      In No. 13-3154, Mr. Glynn also argues that (5) the evidence was

insufficient to sustain his convictions for aggravated burglary and attempted

aggravated robbery, (6) he was denied a fair trial by the failure to instruct on

voluntary intoxication from cocaine, (7) the trial court should have given a

cautionary instruction about eyewitness identification testimony, (8) the

attempted murder charge lacked the essential elements of intent and premeditation

and was defective, and (9) a victim’s photographic identification of him should

have been suppressed because the photo lineup was impermissibly suggestive.

      In No. 13-3155, Mr. Glynn argues that (10) he should have been granted a

change of venue due to publicity, (11) his sentences for aggravated kidnaping,

rape, and sodomy are multiplicitous, (12) use of prior convictions in sentencing

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was contrary to Kansas law, (13) the evidence was insufficient to sustain his

convictions for attempted kidnaping, rape, and aggravated sodomy.

      To appeal the district court’s denial of habeas relief, Mr. Glynn must obtain

a certificate of appealability (“COA”). This requires a 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. McDaniel, 529

U.S. 473, 484 (2000) (quotations omitted). As to claims rejected by the district

court on procedural grounds, Mr. Glynn also must demonstrate that “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. As to claims

rejected on the merits based upon the state courts’ adjudication, Mr. Glynn must

show that the state courts’ adjudication either “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented” or was “contrary to, or involved an unreasonable application of,

clearly established Federal law.” § 2254(d)(1), (2); Williams v. Taylor, 529 U.S.

362, 412–13 (2000).

      We have carefully reviewed Mr. Glynn’s combined opening brief and

application for a COA in each appeal, the district court’s careful analysis of each

of Mr. Glynn’s claims, and the record. Based on this review, we conclude that

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Mr. Glynn fails to make a substantial showing of a denial of a constitutional right

and that no reasonable jurist could debate the correctness of the district court’s

substantive and procedural decisions. Accordingly, we DENY a COA and

DISMISS the appeals.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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