                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 16 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LYLE CRAIG SANDERS,

                Petitioner - Appellant,

    v.                                                  No. 02-3057
                                                  D.C. No. 98-CV-3404-DES
    MICHAEL A. NELSON; ATTORNEY                          (D. Kansas)
    GENERAL OF THE STATE OF
    KANSAS,

                Respondents - Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY and BALDOCK , Circuit Judges, 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      This order and judgment is not binding precedent, except under the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 Lyle Craig Sanders, a state inmate appearing pro se, seeks

a certificate of appealability (COA) to appeal the district court’s denial of his

petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.      See

28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the

denial of a § 2254 habeas petition unless the petitioner first obtains a COA).

Because Sanders has not demonstrated “a substantial showing of the denial of

a constitutional right,” this court denies his request and dismisses the appeal.

Id. § 2253(c)(2).

       In March 1996, Sanders was convicted by a jury of first-degree murder and

for unlawful use of a weapon after conviction of a felony.     1
                                                                   He was sentenced

under the Kansas habitual criminal statute to three consecutive life terms for

the murder and one-to-five years for the aggravated weapons violation. On

direct appeal, Sanders argued that (1) the trial court erred by disallowing

cross-examination of a police detective on his subsequent resignation from the

police force on a matter unrelated to Sanders’ trial; (2) the court erred by

allowing the prosecution to introduce evidence of Sanders’ post-Miranda warning

silence; (3) the prosecution unlawfully used its peremptory challenges to



1
       Sanders was previously convicted on the same charges, however, the
Kansas Supreme Court reversed and remanded for a new trial after it concluded
the trial court erred in failing to instruct the jury on the lesser included charge of
second-degree murder. See State v. Sanders , 904 P.2d 951, 957 (Kan. 1995).

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systematically exclude minorities from Sanders’ jury; (4) the court unlawfully

imposed a triple-life sentence; and (5) the prosecution failed to prove the

aggravated weapons violation. The Kansas Supreme Court affirmed the

convictions and sentences in    State v. Sanders , 949 P.2d 1084, 1093 (Kan. 1997).

       Sanders then filed a motion for state post-conviction relief pursuant to

Kan. Stat. Ann. § 60-1507, alleging fourteen grounds of trial error including

ineffective assistance of counsel. The district court summarily denied that

motion. On appeal, Sanders limited his arguments to the issues of whether he

received effective assistance of trial and appellate counsel, and whether the trial

court erred in admitting certain DNA evidence used to obtain his conviction. The

court of appeals noted that although he had raised the issue of ineffective trial

counsel in his post-conviction motion, Sanders further limited that argument to

the issue of whether trial counsel was ineffective by failing to have the DNA

evidence independently tested.

       After a lengthy discussion of trial counsel’s “diligent and aggressive[]”

actions concerning, among other things, the admission of the DNA evidence, the

court of appeals concluded that trial counsel’s decision to refrain from

independent testing of the DNA samples was a tactical one, which did not

constitute ineffective assistance of counsel.         Sanders v. State , 995 P.2d 397,

399-400 (Kan. Ct. App. 1999). In addition, the court concluded that Sanders


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failed to show that his case was prejudiced by the lack of independent testing.

The court refused to address the issues of whether the trial court erred by

admitting the DNA evidence, and whether Sanders was denied effective appellate

counsel during his direct appeal because those issues were not properly preserved

under Kansas law.      See id. at 400. The Kansas Supreme Court denied Sanders’

petition for review.

      In his federal habeas petition, Sanders made the following claims: (1) the

trial court erred by disallowing cross-examination of the police detective

concerning the circumstances surrounding his resignation from the police force;

(2) the court erred by allowing the prosecution to introduce evidence of Sanders’

post-Miranda warning silence; (3) the prosecution unlawfully used its peremptory

challenges to exclude minorities from Sanders’ jury; (4) the prosecution failed to

prove the aggravated weapons charge; (5) ineffective trial counsel; (6) ineffective

appellate counsel; (7) the trial court improperly admitted certain DNA evidence

used to obtain his conviction; and (8) the court unlawfully imposed a triple-life

sentence.

      The district court denied Sanders’ petition, rejecting his constitutional

arguments for claims one through five, above, on the merits. The court found that

Sanders failed to exhaust his final three claims, concluding that the claims were

defaulted on state law grounds, and thus procedurally barred for purposes of


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federal habeas review pursuant to      Coleman v. Thompson , 501 U.S. 722, 735 n.*

(1991). The court further found that Sanders had shown neither cause for the

defaults or prejudice in his case, nor any fundamental miscarriage of justice. The

court refused to issue Sanders a COA.

       As noted above, to obtain a COA, Sanders must make “a substantial

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

the district court denies a habeas petition on the merits of the constitutional

claims, “[t]he petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000). When the court denies a petition

on procedural grounds, the petitioner must show “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of

a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.”   Id.

       In light of these governing legal standards, we have conducted a

comprehensive de novo review of Sanders’ request for a COA and accompanying

brief, the district court’s memorandum and order, and the entire record on appeal.

Based on this review, and for substantially those reasons stated by the district

court in its thorough memorandum and order dated February 8, 2002, we conclude

that Sanders has not shown his habeas petition is deserving of further


                                              -5-
proceedings, debatable among jurists of reason, or subject to a different resolution

on appeal. See id. Sanders’ request for a COA is DENIED. The appeal is

DISMISSED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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