                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 19, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 RICK Y DAVIS,

              Petitioner - A ppellant,                   No. 07-3005
       v.                                                 (D. Kansas)
 DAVID M cKUNE, W arden, Lansing                  (D.C. No. 05-CV-3442-JAR)
 Correctional Facility; PHILL KLINE,
 Attorney General of the State of
 Kansas,

              Respondents - Appellees.



                                         OR DER


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Proceeding pro se, Ricky Davis seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Davis has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2). Davis’ motion to proceed in

forma pauperis on appeal is granted.
      Davis was convicted by a Kansas jury of two counts of rape and one count

of kidnaping. He was sentenced to 389 months’ imprisonment. On appeal, the

Kansas Court of Appeals refused to consider Davis’ argument that his prosecution

violated the speedy trial provisions of the Kansas A greement on Detainers A ct,

Kan. Stat. Ann. § 22-4401, because Davis failed to raise the issue before the trial

court. The appellate court then rejected Davis’ argument the trial court erred by

failing to give unanimity instructions on the rape and kidnaping charges,

concluding the jury did not have to be unanimous as to the means by which each

single offense was committed. The Kansas Supreme Court refused to review the

Court of Appeals’ decision.

      Davis then filed a motion for a W rit of Habeas Corpus pursuant to Kan.

Stat. Ann. § 60-1507, alleging ineffective assistance of counsel, violation of his

speedy trial rights, and erroneous jury instructions. The state district court denied

relief and Davis appealed, abandoning all claims except the ineffective assistance

of counsel allegations. Davis v. Kansas, 113 P.3d 834, 834 (Kan. App. 2005)

(unpublished disposition). The Kansas Court of Appeals considered the

ineffective assistance claims but affirmed the denial of the habeas motion. Id.

      Davis filed the instant federal § 2254 habeas petition on November 22,

2005, raising three general grounds for relief w hich he characterized as follow s:

(1) “K.S.A. 22-3402 and K.S.A. 22-4401, Unanimity Instructions on Force, Treat

[sic] or Deception or Force or Fear,” (2) “Effective Counsel, Chapter 60-1507

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K.S.A. 22-3402 and 22-4401, Inspection / Brady M ateral [sic] 22-3212 / New

Trial,” and (3) “Sixth A mendment Rights, Failure to require hearing in open court

for good cause shown, Failure to parpare [sic] for trial.” Respondents moved to

dismiss Davis’ § 2254 petition, arguing he procedurally defaulted many of his

claims by failing to exhaust his state remedies and, alternatively, that all his

claims failed on the merits. Concluding many of D avis’ claims were

unexhausted, the district court declined to stay the petition and hold it in

abeyance, deciding instead to address all the claims on the merits. See Rhines v.

Weber, 544 U.S. 269, 277-78 (2005); 28 U.S.C. § 2254(b)(2) (“An application for

a w rit of habeas corpus may be denied on the merits, notwithstanding the failure

of the applicant to exhaust the remedies available in the courts of the State.”).

W ith respect to the claims Davis presented to the state court, the district court

applied the standard set forth in the Antiterrorism and Effective Death Penalty

Act and concluded the state court’s adjudication of the claims was not contrary to,

nor an unreasonable application of clearly established federal law or based on an

unreasonable factual determination. 28 U.S.C. § 2254(d). The court reviewed the

remaining claims de novo and concluded Davis was not entitled to relief.

      This court cannot grant Davis a COA unless he can demonstrate “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.

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M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Davis has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). Davis is not required to

demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      This court has reviewed Davis’ application for a COA and appellate brief,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in M iller-El and concludes that Davis is

not entitled to a COA. The district court’s resolution of Davis’ claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, Davis has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2).

      This court denies Davis’ request for a COA and dismisses this appeal.

                                        Entered for the Court


                                        M ichael R. M urphy
                                        Circuit Judge




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