                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 19 2000
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JAMES W. KERNS, JR.,

                  Petitioner-Appellant,

    v.                                                    No. 99-8080
                                                    (D.C. No. 97-CV-174-D)
    JACK GARNER, Warden,                                   (D. Wyo.)
    T. Don Hutto Correctional Center;
    ATTORNEY GENERAL OF THE
    STATE OF TEXAS,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before BALDOCK , McKAY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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-appellant James W. Kerns, Jr., a state prisoner appearing pro se,

appeals the district court’s decision denying his petition for a writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254. We deny a certificate of appealability

(COA) and dismiss the appeal.


                                  BACKGROUND

      Kerns was convicted of first-degree murder in the death of Jose Henriquez,

a Mexican national whose body had been found in a campground near Big Piney,

Wyoming. Seven months after discovery of the body, Debar Green, Kerns’

estranged girlfriend, reported to law enforcement officers that Kerns had told her

that he had met a Mexican at the Silver Spur Bar and drove him to the mountains

around Big Piney, where Kerns robbed, kicked, and stabbed him. Upon an

agreement by the prosecutor not to prosecute, Kenneth Lord, a convicted felon

and Kerns’ roommate, told authorities that Kerns had confessed to robbing and

killing Henriquez.

      At trial, Green and Lord’s testimony was consistent with their earlier

statements. Other witnesses placed Kerns at the Silver Spur Bar on the night

Henriquez had disappeared. Additionally, an expert witness testified that dog hair

found on the victim’s pants and in Kerns’ vehicle were similar in some respects.

This testimony was significant in light of Lord’s statement that Kerns had his dog



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with him the night he killed Henriquez. In his defense, Kerns introduced alibi

testimony.

      The jury returned a verdict finding Kerns guilty of premeditated and felony

murder. On direct appeal of the conviction to the Wyoming Supreme Court,

Kerns asserted six issues concerning the conduct of his trial:

      (1) the failure to grant a challenge for cause to a jury member, who was

      a cousin to a witness in the case and expressed concerns about drug-dealer

      testimony;

      (2) improper grant of immunity to Lord;

      (3) denial of the right to confront Green, due to the prosecution’s failure to

      disclose that she had been arrested in order to secure her presence at trial;

      (4) prosecutorial misconduct in (a) failure to disclose    the loss of physical

      dog-hair evidence and the existence of a witness who had told investigators

      that Kerns had not been at the Silver Spur Bar the night in question, and

      (b) failure to inform defense until trial of an intention to introduce evidence

      that Lord had bought drugs from Kerns between the time of the murder and

      Kerns’ arrest;

      (5) admission of hearsay testimony concerning Green’s statements to law

      enforcement officials; and

      (6) cumulative error.


                                           -3-
See Kerns v. State , 920 P.2d 632, 635-41 (Wyo. 1996). The Wyoming

Supreme Court found error in the prosecution’s failure to disclose the

potentially-exculpatory witness and the admission of hearsay. It determined,

however, that the errors were harmless: defense counsel learned of the witness

before trial and, in fact, she did testify, and the hearsay evidence was merely

a repetition of Green’s direct testimony. Kerns’ conviction, therefore, was

affirmed. See id. at 634, 641. In his federal habeas petition, Kerns raised

essentially the same issues.

      The district court analyzed each of the issues, along with their cumulative

effect, in light of applicable federal law. It determined that Kerns had failed to

demonstrate entitlement to habeas relief, in that he had not shown that the

adjudication of “his claim[s] resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The district court also denied Kerns’ request for a certificate of appealability.

      In this court, Kerns renews his request for a certificate of appeal, raising

the same issues resolved in the state court and the district court. In addition, he

asserts that his due process rights were violated by the district court’s disposition

of his case without allowing him to provide legal argument or amend his petition

and without requiring a response from respondents.


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       No appeal can be taken from the final order in a habeas corpus proceeding

unless the petitioner is issued a certificate of appealability.     See 28 U.S.C.

§ 2253(c). The Supreme Court has recently addressed the requirements for

obtaining a COA under § 2253(c).

              [A] habeas prisoner must make a substantial showing of the
       denial of a constitutional right, a demonstration that . . . includes
       showing 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. McDaniel , 120 S. Ct. 1595, 1603-04 (2000) (quoting         Barefoot v. Estelle ,

463 U.S. 880, 893, & n.4 (1983) (further quotations omitted)). Where, as here,

“a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.”           Id. at 1604.

       Based on our review of the record, we determine that the district court’s

assessment of Kerns’ claims was correct. Moreover, we see no constitutional

violation in the district court’s procedure in this matter. For substantially the




                                               -5-
same reasons articulated in the district court’s order of July 27, 1999, we deny

Kerns’ request for a certificate of appealability and DISMISS his appeal.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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