                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAY 18 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


DAVID JOHN ZABRINAS,

       Petitioner-Appellant,

v.                                                     No. 05-3026
                                                    (District of Kansas)
DAVID McKUNE; ATTORNEY                          (D.C. No. 03-CV-3072-JAR)
GENERAL OF THE STATE OF
KANSAS,

       Respondents-Appellees.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      This matter is before the court on David John Zabrinas’ pro se request for a

certificate of appealability (“COA”). Zabrinas seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court,” unless the petitioner first obtains a COA).

Because Zabrinas has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      Zabrinas was convicted in Kansas state court of aggravated indecent

solicitation of a child in violation of Kan. Stat. Ann. § 25-3511; he was sentenced

to a term of imprisonment of sixty months. After exhausting his state court

remedies, Zabrinas brought the instant § 2254 petition raising the following

claims: (1) because the crime charged could be committed in more than one way,

the trial court erred in refusing to instruct the jury that it must unanimously agree

on the act underlying the conviction; (2) the trial court erred in refusing to give a

lesser included offense instruction; (3) his conviction was not supported by

sufficient evidence; (4) the trial court’s upward departure from the presumptive

sentencing range violated the Supreme Court’s decisions in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004);

and (5) his trial counsel provided constitutionally ineffective assistance in failing

to object to certain statements made by the prosecutor during closing arguments.

In concluding Zabrinas was not entitled to habeas relief, the district court

reasoned as follows: (1) the state court’s determination that no unanimity

instruction was necessary because each alternative means of committing the crime

was supported by substantial evidence is consistent with Schad v. Arizona, 501

U.S. 624 (1991); (2) failure to give a lesser included offense instruction in a non-


                                         -2-
capital case, whether or not warranted, is not grounds for federal habeas relief,

Spears v. Mullin, 343 F.3d 1215, 1236 (10th Cir. 2003); (3) the state court’s

determination that Zabrinas’ conviction was sufficiently supported by the

testimony of the officer recounting the statements the young victim made

contemporaneously with the crime was not contrary to or an unreasonable

application of Jackson v. Virginia, 443 U.S. 307 (1979); (4) Apprendi and Blakely

are not retroactively applicable on federal habeas review 1; and (5) trial counsel

was not ineffective for failing to raise the issue of prosecutorial misconduct with

regard to the prosecutor’s closing argument because the prosecutor’s statements

were permissible comments on the evidence presented at trial.

      To be entitled to a COA, Zabrinas must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate whether (or,



      1
        We note that in concluding that Blakely is not retroactively applicable on
federal habeas review, the district court relied on Tyler v. Cain, 533 U.S. 656
(2001); Leonard v. United States, 383 F.3d 1146 (10th Cir. 2004); and Browning
v. United States, 241 F.3d 1262 (10th Cir. 2001) (en banc). Each of these cases,
however, deals with the standards this court employs in analyzing whether to
grant an applicant permission to file a second or successive habeas petition or 28
U.S.C. § 2255 motion. They do not deal with the question whether Blakely is
retroactively applicable to a first habeas petition, such as that in this case. In any
event, this court has specifically applied the retroactivity analysis set out in
Teague v. Lane, 489 U.S. 288 (1989) and concluded that Blakely is not
retroactively applicable to a first habeas petition. United States v. Price, 400 F.3d
844 (10th Cir. 2005).

                                         -3-
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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Zabrinas has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Zabrinas need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Zabrinas’ application for a COA and

appellate filings, the district court’s order, and the entire record before this court

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Zabrinas is not entitled to a COA. The district court’s resolution

of Zabrinas’ § 2254 petition is not reasonably subject to debate and the issues he

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court DENIES Zabrinas’ request for a COA and DISMISSES

this appeal.

                                         Entered for the Court
                                         PATRICK FISHER, Clerk of Court


                                         By
                                                 Deputy Clerk

                                           -4-
