                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LARRY D. SIMMS,

                Petitioner-Appellant,

    v.                                                    No. 00-3015
                                                    (D.C. No. 97-3027-DES)
    DAVID R. MCKUNE; ATTORNEY                              (D. Kan.)
    GENERAL OF KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY, PORFILIO,           and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
       Petitioner Larry D. Simms, a prisoner of the State of Kansas appearing

pro se, appeals from the denial of his petition for habeas relief filed under

28 U.S.C. § 2254, and applies for a certificate of appealability (COA) under

28 U.S.C. § 2253(c). “[A] COA may not issue unless ‘the applicant has made a

substantial showing of the denial of a constitutional right.’”   Slack v. McDaniel ,

120 S. Ct. 1595, 1603 (2000) (quoting § 2253(c)).

       Petitioner was convicted of kidnapping, aggravated robbery, and attempted

aggravated robbery. His conviction was affirmed on direct appeal. In his habeas

petition, petitioner claimed that the police conducted an unduly suggestive lineup,

that the confinement of the victim was insufficient to constitute kidnapping, that

the court constructively amended the complaint by its jury instructions, that he

received ineffective assistance of counsel, and that the imposition of consecutive

sentences violated his right to be free from double jeopardy.

       The district court thoroughly reviewed each of petitioner’s claims. We

have carefully reviewed petitioner’s brief on appeal, the district court’s

December 23, 1999 decision, and the record on appeal. For substantially the same

reasons as those set forth in the district court’s memorandum and order, we




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deny petitioner’s application for a certificate of appealability. The appeal is

DISMISSED.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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