                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        FEB 23 2000
                                   TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 GREGORY L. DANIEL,

          Petitioner-Appellant,
 v.

 WYOMING DEPARTMENT OF                                 No. 99-8082
 CORRECTIONS STATE                               (D.C. No. 97-CV-183-D)
 PENITENTIARY WARDEN, in his                            (D. Wyo.)
 official capacity, aka James Ferguson;
 WYOMING ATTORNEY GENERAL,
 in his official capacity,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Petitioner-Appellant Gregory L. Daniel (“Daniel”) was convicted by a jury

in Wyoming state court of two counts of immodest, immoral, or indecent acts with

a minor and was sentenced to seven-and-a-half to nine years for each count, to be


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
served consecutively. Daniel filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2254 on July 23, 1997. In his petition, Daniel argued that his

constitutional rights were violated from (1) the court’s failure to allow Daniel to

cross-examine an expert about an unrelated sexual assault case; (2) the court’s

failure to follow, with respect to allegations concerning AH and KJ, Wyoming’s

procedures for admitting evidence under Federal Rule of Evidence 404(b); (3) the

court’s exclusion of the testimony of KeK and KaK after the jury had learned of

allegations that those children had accused Daniel of molestation; (4)

prosecutorial misconduct; (5) cumulative evidentiary error; (6) the court’s failure

to allow Daniel to present certain expert testimony; and (7) the admission of

testimony regarding Daniel’s refusal to submit to a second interview. The district

court denied Daniel’s habeas petition on August 19, 1999.

      Because Daniel filed his § 2254 petition on July 23, 1997, more than one

year after the effective date of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C.A. §§ 2254-66 (1996), the AEDPA provision requiring a

certificate of appealability applies to Daniel’s appeal. Although the district court

did not act on the issue of a certificate of appealability, the certificate of

appealability is deemed denied by the district court pursuant to this court’s

General Order of October 1, 1996. See Tenth Circuit Emergency General Order




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issued October 1, 1996. On November 30, 1999, the district court denied

Daniel’s request to proceed in forma pauperis under 28 U.S.C. § 1915.

      Daniel now applies to this court for a certificate of appealability and asks

us to address his petition. He also appeals the order denying him in forma

pauperis status.

      A certificate of appealability may issue only if the applicant has made a

substantial showing of the denial of a constitutional right. See 28 U.S.C. §

2253(c)(2). After reviewing Daniel’s application for a certificate of appealability,

his briefs to this court and the district court, and the record, we find no

substantial showing of the denial of a constitutional right. Nothing in Daniel’s

brief or the record suggests that the limitations placed on Daniel’s cross-

examination of Dr. Bell, in reference to an unrelated sexual assault case, rose to

the level of a constitutional violation. Similarly, nothing in Daniel’s brief or the

record suggests that the state court’s evidentiary rulings with respect to the

allegations concerning AH and KJ, who never testified at trial, rendered his trial

so fundamentally unfair as to constitute a denial of his federal constitutional

rights. See Duvall v. Reynolds, 139 F.3d 768, 789 (10th Cir. 1997). There is also

nothing to show how the exclusion of the testimony of KeK and KaK infringed on

Daniel’s constitutional right to a fair trial or his right to confrontation. The

allegation of prosecutorial misconduct lacks specificity, and therefore amounts to


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a conclusory argument that cannot suffice to demonstrate a violation of Daniel’s

constitutional right to a fair trial. Daniel’s cumulative evidentiary error argument

and his argument regarding the exclusion of certain expert testimony, like his

argument concerning the court’s evidentiary rulings with respect to AH and KJ,

presents no legal or factual support to show that the alleged errors rendered his

trial so fundamentally unfair as to constitute a denial of his federal constitutional

rights. Finally, there is nothing in Daniel’s brief or the record that shows us the

content or context of the testimony regarding Daniel’s failure to submit to a

second interview, or that demonstrates that the testimony violated Daniel’s Fifth

Amendment rights.

      Our review of the record demonstrates that the district court’s analysis of

the issues was correct, and that Daniel has failed has to make a substantial

showing that he was denied a constitutional right. Accordingly, we DENY

Daniel’s application for a certificate of appealability and DISMISS this appeal.

We also DENY his motion to proceed in forma pauperis.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge



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