                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           FEB 5 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RUSSELL R. MAGGARD,

              Petitioner - Appellant,
                                                       No. 02-3177
 v.                                              D.C. No. 01-CV-3081-DES
                                                        (D. Kansas)
 JAMES A. GAMMON, Warden;
 CARLA STOVALL, Attorney General
 of Kansas,

              Respondents - Appellees.


                           ORDER AND JUDGMENT *


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


      Petitioner-Appellant Russell R. Maggard, a state 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 pursuant to

28 U.S.C. § 2254. Because Mr. Maggard has failed to make “a substantial

      *
        This order and judgment is not binding precedent, except under the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 case is therefore ordered submitted without oral argument.
showing of the denial of a constitutional right” as required by 28 U.S.C. §

2253(c)(2), we deny his request and dismiss the appeal.

      Mr. Maggard was convicted by a jury in Kansas state court of two counts of

arson. He was sentenced to two consecutive terms of five to ten years

imprisonment, which was then doubled under the Kansas Habitual Criminal Act,

Kan. Stat. Ann. § 21-4504, to consecutive terms of ten to twenty years. On direct

appeal, the Kansas Court of Appeals (“KCOA”) affirmed Mr. Maggard’s

conviction but remanded the case for resentencing because, in the court’s view,

the trial court imposed a habitual criminal increase without competent evidence of

Mr. Maggard’s prior convictions. On remand, the trial court imposed the same

sentence but “without articulating a statutory basis for its discretionary

conclusion,” State v. Maggard, No. 71,558 (Kan. Ct. App. Feb 3, 1995) (quoted at

R. Doc. 8 at 6), and so the case was again remanded by the KCOA for

resentencing. Finally, the trial court resentenced Mr. Maggard to the same term,

and the KCOA affirmed the sentence in 1998. State v. Maggard, 953 P.2d 1379

(Kan. Ct. App. 1998). Mr. Maggard’s post-conviction appeal to the Kansas state

courts was unsuccessful, Maggard v. State, 11 P.3d 89 (Kan. Ct. App. 2000), and

he filed a request for federal habeas relief in 2001.

      Mr. Maggard raised four claims before the federal district court and

reasserts them on appeal: (1) the failure to bring him to trial within the time


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provisions of the Interstate Agreement on Detainers Act (“IAD”), 18 U.S.C. App.

§ 2, violated his constitutional rights, (2) the trial court’s failure to conduct an

evidentiary hearing prior to introduction of prior bad acts evidence violated his

due process rights, (3) ineffective assistance of appellate counsel, and (4)

ineffective assistance of trial counsel.

      We have carefully reviewed Mr. Maggard’s brief, the district court’s

thorough disposition, and the record on appeal. Nothing in the facts, the record

on appeal, or Petitioner’s brief raises an issue which meets our standards for the

grant of a COA. For substantially the same reasons as set forth by the district

court in its order of April 22, 2002, R. Doc. 8, we cannot say “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quotations omitted).

      In particular, Mr. Maggard relies upon New York v. Hill, 528 U.S. 110

(2000), as supporting the notion that a violation of the IAD is cognizable under

§ 2254. The case came to the Supreme Court from the New York Court of

Appeals, and held that defense counsel could waive a defendant’s speedy trial

rights under the IAD. Hill, 528 U.S. at 114. It does not directly or by implication

suggest that an IAD violation is cognizable under § 2254. Even if we were to so

find, Mr. Maggard has not alleged facts sufficient to support a “substantial


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showing of the denial of a constitutional right” as required by 28 U.S.C. §

2253(c)(2). Absent here is any showing of “special circumstances” that drive the

IAD violations–if in fact they occurred–to the level of depriving Mr. Maggard of

some constitutionally protected right. Greathouse v. United States, 655 F.2d

1032, 1034 (10th Cir. 1981).

      So also Mr. Maggard’s objections to the trial court’s admission of prior bad

acts evidence do not rise to the level of denial of a constitutional right, and mere

errors of state law cannot form the basis for habeas relief. See Estelle v.

McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for

errors of state law.”) (citations omitted). This court will not, as a general matter,

revisit state court evidentiary rulings “unless the rulings in question rendered the

trial so fundamentally unfair as to constitute denial of federal constitutional

rights.” Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001) (quotation

omitted).

      Finally, Mr. Maggard’s ineffective assistance claims were rejected by the

Kansas Supreme Court due to a procedural bar, and, because the decision of the

state court rested on an “independent and adequate” state procedural ground, this

Court cannot review it absent a showing of “cause” and “prejudice.” See

Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“In all cases in which a state

prisoner has defaulted his federal claims in state court pursuant to an independent


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and adequate state procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law.”). Moreover, petitioner has failed to

satisfy the “prejudice” prong of the test for constitutionally ineffective assistance

of counsel insofar as nothing in the record indicates that there is a reasonable

probability that the result of the proceedings would have been different but for

Mr. Maggard’s counsels’ alleged transgressions.

      Accordingly, we DENY Petitioner's request for a COA and DISMISS the

appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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