                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 21 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 EARL E. WILBURN,

           Petitioner - Appellant,
 vs.                                                   No. 00-3168
                                                (D.C. No. 99-CV-3167-DES)
 MICHAEL NELSON and the                                  (D. Kan.)
 ATTORNEY GENERAL OF
 KANSAS,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Petitioner Earl E. Wilburn, an inmate appearing pro se, seeks a certificate

of appealability (“COA”) allowing him to appeal the district court’s order denying

relief on his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Because Mr.

Wilburn has failed to make “a substantial showing of the denial of a


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request

and dismiss the appeal.

      In March 1990, Mr. Wilburn was convicted in Kansas state court of the first

degree murder of his ex-wife’s boyfriend and the second degree murder of his ex-

wife. He was sentenced to consecutive terms of life imprisonment and fifteen

years to life, respectively. His conviction was affirmed on direct appeal by the

Kansas Supreme Court. State v. Wilburn, 249 Kan. 678 (1991). After

unsuccessfully raising his claims in three state post-conviction proceedings,

Wilburn v. State, No. 68,447 (Kan. Ct. App. April 30, 1993) (unpublished);

Wilburn v. State, No. 70,635 (Kan. Ct. App. July 29, 1994) (unpublished);

Wilburn v. State, No. 78,931 (Kan. Ct. App. Oct. 23, 1998) (unpublished), Mr.

Wilburn filed the instant federal habeas petition. The district court denied the

petition on the merits, R.O.A. Doc. 38, and denied a COA. Id. Doc. 41.

      Mr. Wilburn raises six claims before this court: (1) whether the trial court

erred in failing to instruct the jury on the defense of diminished capacity; (2)

whether the trial court erred in ruling that the issue of whether petitioner’s

Miranda rights had been violated was properly taken up prior to trial; (3) whether

the trial court erred in refusing to conduct an evidentiary hearing regarding

allegations of juror misconduct and ineffective assistance of counsel; (4)

ineffective assistance of counsel; (5) whether the trial court properly instructed


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the jury regarding the element of intent; and (6) whether the trial court properly

instructed the jury on the elements of second degree murder.

      We have reviewed the district court’s order in light of Mr. Wilburn’s

submissions to this court and the record on appeal. We agree that Mr. Wilburn

has failed to establish that the underlying state court decisions were “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 were “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2).

      We DENY Mr. Wilburn’s request for a COA and DISMISS this appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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