                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 15 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    STANTON S. HOLT,

                  Petitioner-Appellant,

    v.                                                   No. 01-3086
                                                  (D.C. No. 98-CV-3039-DES)
    ROBERT D. HANNIGAN;                                    (D. Kan.)
    ATTORNEY GENERAL OF THE
    STATE OF KANSAS,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and          BRORBY , Senior
Circuit Judge.




         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      This order and judgment is not binding precedent, except under the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 Stanton S. Holt, a prisoner of the State of Kansas appearing

pro se, appeals from denial of his petition for habeas relief filed under 28 U.S.C.

§ 2254. He has filed an application for a certificate of appealability to proceed on

appeal. To obtain a certificate of appealability, petitioner must make “a

substantial showing of the denial of a constitutional right.”   Id. § 2253(c)(2).

       Petitioner was convicted in 1994 of numerous criminal offenses, including

two murders, arising from a string of burglaries in Junction City, Kansas. The

trial court sentenced him to two consecutive life sentences plus a term of 123 to

355 years. His conviction and sentence were upheld on direct appeal, and the

Kansas Supreme Court decided each of petitioner’s five issues on their merits.

See State v. Holt , 917 P.2d 1332 (Kan. 1996). The trial court dismissed his state

post-conviction petition. While his appeal from that dismissal was pending in the

Kansas Court of Appeals, petitioner filed his pro se federal habeas petition,

raising numerous issues. The district court determined that only two of

petitioner’s issues were not procedurally barred due to his failure to present them

to the Kansas Supreme Court: (1) the trial court’s instruction to the jury

regarding felony murder failed to specify the underlying felony, and thereby

relieved the State of its burden of proof and denied petitioner due process; and

(2) petitioner’s conviction and sentence for both felony murder and the underlying




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felony violated the Double Jeopardy Clause. The district court rejected these two

claims on the merits, and denied habeas relief.

       On appeal, petitioner raises these issues: (1) the trial judge appeared to be

biased; (2) prosecutorial misconduct; (3) the evidence was insufficient to sustain

the convictions for first degree murder; (4) error in the jury instructions; (5) a

double jeopardy violation; and (6) ineffective assistance of trial counsel.

       The district court correctly determined that only those issues that petitioner

raised on direct appeal to the Kansas Supreme Court could be considered in this

federal habeas proceeding because petitioner failed to present any issues in his

post-conviction proceeding to that court.    See O’Sullivan v. Boerckel , 526 U.S.

838, 842 (1999). Further, petitioner’s procedural default was not excused because

he did not demonstrate cause and prejudice for his failure to exhaust his issues, or

that a fundamental miscarriage of justice would result if his issues were not

addressed. See Edwards v. Carpenter , 529 U.S. 446, 451 (2000). The district

court also evaluated petitioner’s exhausted claims under the appropriate standard.

That is, because the Kansas Supreme Court addressed petitioner’s claims of error

on the merits, a federal court is precluded from granting habeas relief unless the

state proceeding “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based


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on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” § 2254(d)(2). In addition, a federal court

“presume[s] the factual findings of the state court are correct unless petitioner can

rebut this presumption by clear and convincing evidence.”       Smallwood v. Gibson ,

191 F.3d 1257, 1265 (10th Cir. 1999) (citing § 2254(e)(1)).

       Reading petitioner’s brief liberally, the only issues presented on appeal that

are not procedurally barred are the same two issues addressed on the merits by the

district court. On these issues, we deny a certificate of appealability for

substantially the same reasons as those given by the district court in its March 14,

2001 memorandum and order.

       Petitioner’s claims that the trial judge appeared to be biased, that there was

prosecutorial misconduct, and that the evidence was insufficient to sustain the

convictions for first degree murder are procedurally barred.     See Smallwood , 191

F.3d at 1265.

       Petitioner’s claim of ineffective assistance of trial counsel is waived

because he did not present this claim to the district court.   See Singleton v. Wulff ,

428 U.S. 106, 120 (1976).




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     The application for a certificate of appealability is denied and the appeal is

DISMISSED. The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




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