                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           APR 5 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 LARRY T. BROILS,

               Petitioner-Appellant,                     No. 04-3452
          v.                                          District of Kansas
 CHARLES SIMMONS; ATTORNEY                       (D.C. No. 02-CV-3431-MLB)
 GENERAL OF KANSAS,

               Respondents - Appellees.




                                       ORDER *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Larry T. Broils, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal 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 we conclude that Mr. Broils has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we 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       This order is not binding precedent, except under the doctrines of law of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.
                     I. Factual and Procedural Background

      Mr. Broils was convicted in Kansas state court of raping a five-year-old

girl. After his direct appeal and collateral attack failed in the Kansas courts, he

filed a federal habeas petition. Before the district court, Mr. Broils asserted eight

claims: six of these claims involved ineffective assistance of counsel, one claim

was based on jury instruction error, and one claim involved improper juror

contact with the victim’s family. The district court held that Mr. Broils

procedurally defaulted on one of his ineffective assistance of counsel claims, and

denied relief on the merits with respect to the remainder of the claims. On

October 15, 2004, the district court entered an order denying Mr. Broils’s

application for a COA. He has renewed his request here.

                              II. Standard of Review

      A COA may issue “only if the applicant has made a substantial showing of

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

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). This

requires a prisoner whose habeas petition was denied on procedural grounds to


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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. If a procedural bar is “plain” and “the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Id.

                                    III. Discussion

      Mr. Broils makes four claims on appeal, each alleging a specific instance of

ineffective assistance of counsel. In order to demonstrate ineffective assistance

of counsel, a defendant must show that counsel’s performance was so deficient

that it “fell below an objective standard of reasonableness” and that the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

688, 692 (1984).

      Mr. Broils first claims that his trial counsel was ineffective for failing to

call an expert witness. Mr. Broils did not raise this issue to the district court;

therefore, we will not consider the claim on appeal. See Trierweiler v. Croxton &

Trench Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996).

      Mr. Broils next claims that his trial counsel was ineffective for failing to

object when the court excluded testimony from a defense witness. This claim was


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not presented in the state system. We may consider procedurally defaulted claims

only if the petitioner demonstrates “cause and prejudice or a fundamental

miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).

The district court found nothing in the record that amounted to cause for the

procedural default and Mr. Broils did not present arguments or evidence to

suggest actual innocence; nor does he make such arguments before us. The

district court dismissed the claim as procedurally defaulted. The procedural rule

that a defendant must present a claim to a state court before making the claim in a

federal court is “plain.” See Slack, 529 U.S. at 484; see also 28 U.S.C. §

2254(b)(1)(A). A reasonable jurist could not conclude that the district court erred

in dismissing this claim.

      Mr. Broils’s third claim is that his trial counsel was ineffective for failing

to object to the jury instructions because they did not instruct the jury on the

lesser included offense of aggravated indecent liberties with a child. However,

the Kansas appellate court, relying on state precedent, held that aggravated

indecent liberties with a child is not a lesser included offense of rape because it

includes an additional element of intent not required to prove rape. State v.

Broils, No. 82,264 at 14 (Kan. Ct. App. August 4, 2000) (citing State v. Belcher,

4 P.3d 1137, 1141 (Kan. 1999)). Since Mr. Broils has not shown that there was

any error in the jury instructions, his trial counsel did not render ineffective


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assistance by failing to object.

      Finally, Mr. Broils claims that his trial counsel was ineffective for failing

to investigate alleged juror misconduct. Mr. Broils alleges that after the jury had

returned a verdict, he was informed that there were communications between

members of the victim’s families and jurors during breaks in the trial. Mr.

Broils’s motion for a new trial was heard at sentencing. The court denied the

motion, finding that the allegations were too speculative and without testimony.

Mr. Broils did not challenge this ruling on direct appeal. During his state

collateral attack, Mr. Broils alleged that his counsel failed to investigate the

alleged misconduct prior to the sentencing hearing. The court denied relief,

finding that Mr. Broils had failed to develop the factual basis of the claim. The

Kansas appellate court relied on the second prong of Strickland to affirm, finding

that Mr. Broils was not prejudiced by an alleged failure to investigate, since by

the time of his state collateral attack, two years later, he had still been unable to

establish any factual support for his claim.

      We agree with the Kansas Court of Appeals that “if there were any merit to

petitioner’s claim of juror misconduct, he would have produced evidence to

support it” in his state habeas proceedings. R. Doc. 18, at 16. Therefore, the

Kansas Court of Appeals’ decision was not an unreasonable application of

Strickland. See 28 U.S.C. § 2254(d)(1).


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      Accordingly, we DENY Mr. Broils’s request for a COA and DISMISS this

appeal.

                                          Entered for the Court,

                                          Patrick Fisher, Clerk




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