                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    January 19, 2007
                               TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                      Clerk of Court


 A N TO N IO FO N SEC A-O RTEG A,

             Petitioner-A ppellant,

 v.                                                     No. 06-3199
                                                          (D . Kan.)
 SAM CLINE, W arden, Ellsworth                   (D.C. No. 05-CV-3246-JTM )
 Correctional Facility; ATTO RN EY
 GEN ERAL O F KANSAS,

             Respondents - Appellees.



                                      OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Antonio Fonseca-Ortega, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because w e conclude that M r. Fonseca-Ortega has failed

to make “a substantial showing of the denial of a constitutional right,” we deny

his request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel.
                                    Background

      After the van he was driving struck a moving train, killing one of the

passengers in the van, a K ansas jury convicted M r. Fonseca-O rtega of involuntary

manslaughter, aggravated battery, reckless driving, and transportation of an open

container of alcohol. On appeal in state court, he claimed: 1) the reckless driving

conviction was multiplicatus of his conviction for involuntary manslaughter based

upon the commission of a DUI; 2) the reckless driving conviction was

multiplicatus of his conviction for aggravated battery; 3) the trial court erred

when it failed to instruct the jury on the lesser included offense of driving under

the influence; 4) the prosecutor committed misconduct during closing arguments

by improperly narrowing what the state had to prove and by engaging in improper

burden shifting; and 5) the evidence was insufficient to support his convictions

for involuntary manslaughter, aggravated battery, and reckless driving. The

Kansas Court of Appeals reversed the conviction for reckless driving as

multiplicatus but affirmed the remaining convictions and sentences. M r. Fonseca-

Ortega then filed a habeas petition with the United States District Court for the

District of Kansas, raising improper jury instruction, prosecutorial misconduct

based on statements made during closing arguments, and insufficiency of the

evidence.

      In a detailed M emorandum and Order, the district court denied M r.

Fonseca-Ortega’s petition on all three grounds. First, the district court found that

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it could not review the jury instruction issue because “[t]he Supreme Court has

never recognized a federal constitutional right to a lesser included offense

instruction in non-capital cases.” Fonseca-Ortega v. Cline, No. 05-3246, slip op.

at 4 (D. Kan. M ay 10, 2006) (quoting Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004) (internal quotation marks omitted)). Citing this Circuit’s “automatic

non-reviewability” rule for claims based on a state court’s failure to give such an

instruction in non-capital cases, see Dockins, 374 F.3d at 938, the district court

declined to review whether the trial court improperly excluded a jury instruction

on the lesser included offense of driving under the influence rather than merely

instructing them on involuntary manslaughter.

      Second, the court found that no prosecutorial misconduct occurred during

the closing statements. To w arrant habeas relief, prosecutorial misconduct must

have “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Fonseca-O rtega, No. 05-3246, slip op. at 5 (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)) (internal quotation marks

omitted). The court found that since the prosecutor’s comments were proper, they

did not create any due process concerns. Although the prosecutor emphasized the

importance of proving that M r. Fonseca-Ortega was driving the car, he did not

state that it was the only element the state had to prove. Further, the court found

that the comments the prosecutor made regarding the weakness of the evidence

presented by M r. Fonseca-O rtega were reasonable.

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      Third, the court found that the record included sufficient evidence to

support the conviction. In order to prevail on a sufficiency of the evidence claim,

the court required M r. Fonseca-Ortega to show that no “rational trier of fact could

have found proof of guilt beyond a reasonable doubt.” Id. at 7 (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979) (internal quotation marks omitted)).

Because the record indicated facts that could lead a rational juror to conclude that

M r. Fonseca-Ortega was the driver of the vehicle, was reckless, and was under the

influence of alcohol, the district court found that the evidence presented at trial

was sufficient to support his convictions. M r. Fonseca-Ortega seeks to appeal the

district court’s denial of his habeas petition on these same three grounds. 1

                                     Discussion

      A prisoner may appeal the denial of a motion for relief under 28 U.S.C. §

2254 only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to



      1
       M r. Fonseca-Ortega also claims that his involuntary manslaughter
conviction and reckless driving conviction were multiplicatus. Since the Kansas
Court of Appeals already vacated his conviction for reckless driving, this claim is
moot.

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proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      W e have reviewed closely the district court opinion and find its reasoning

sound and its conclusions correct. M r. Fonseca-O rtega’s submission to this Court

contains no persuasive argument that the petition should have been resolved in a

different manner, nor does he show that the issues raised were adequate to

deserve encouragement to proceed further. W e do not believe that reasonable

jurists would find the district court’s determinations debatable or wrong.

                                    Conclusion

      Accordingly, we D EN Y M r. Fonseca-Ortega’s request for a COA and

DISM ISS this appeal.

                                                    Entered for the Court,

                                                    M ichael W . M cConnell
                                                    Circuit Judge




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