                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 17, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 RONALD GRAHAM ,

              Petitioner - A ppellant,                  No. 07-3018
 v.                                             (D.C. No. 06-CV-3176-M LB)
 A TTO RN EY G EN ER AL O F THE                           (D . Kan.)
 STATE OF KANSAS; and DAVID
 M cKUNE, W arden, Lansing
 Correctional Facility,

              Respondents - Appellees.



         O RD ER D EN Y IN G C ERTIFICATE OF APPEALABILITY AND
      A PPL IC A TION FOR L EAVE TO PROCEED IN FORM A PAUPERIS *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


       On August 18, 2000, following a bench trial in Geary County, Kansas, a

state trial court convicted Ronald Graham for possession of methamphetamine

and possession of marijuana. The court thereafter sentenced M r. G raham, inter

alia, to 150 months of incarceration to run consecutively to a prior prison

sentence, matters which were affirmed on direct appeal. See State v. Graham, 46

P.3d 1177, 1179, 1184 (Kan. 2002). M r. Graham then sought post-conviction



       *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
relief in two distinct K ansas state habeas petitions; after consolidating the two

petitions on September 14, 2004, and holding a hearing on November 29, 2004,

the state trial court denied his requested relief on January 5, 2005. The Kansas

Court of A ppeals affirmed on M arch 10, 2006, and the K ansas Supreme Court

denied review on June 8, 2006.

      Following all this, on June 28, 2006, M r. Graham filed in the United States

District Court for the District of Kansas a pro se habeas petition under 28 U.S.C.

§ 2254. In a 21-page memorandum and order, the district court denied M r.

Graham’s requested relief, applying the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA ”), which allows a federal court to grant habeas

relief only if the challenged state court decision on the merits 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).

Specifically, M r. Graham raised, and the district court rejected, the following

three contentions.

      1.   M r. Graham asserted that his 2000 conviction was obtained through

the admission in evidence of a prior constitutionally infirm drug conviction in

Arkansas. But, the district court found no evidence that the Arkansas conviction,

or even any circumstances regarding it, w as introduced in his 2000 Kansas trial.

Instead, the district court found that evidence from yet another trial – involving a

1986 Kansas drug conviction – was introduced in his 2000 trial and, in turn, that

                                          -2-
certain evidence from the Arkansas trial was introduced in the 1986 proceedings.

Seeking to construe M r. Graham’s petition generously, the court proceeded to ask

the question whether these circumstances rendered his 2000 conviction

problem atic; after untangling a rather colorful series of events, it found not.

      Specifically, the evidence admitted in 1986 from the Arkansas proceedings

concerned only the nature of M r. Graham’s defense. In the Arkansas case, M r.

G raham unsuccessfully contended that the drugs at issue were not his own

because the clothes in which they were found belonged to someone else. In the

subsequent 1986 Kansas case, M r. Graham apparently made a run at this same

defense and the court admitted evidence concerning the nature of M r. Graham’s

identical defense in the Arkansas proceeding to show his knowledge and lack of

mistake in the possession of the drugs at issue in 1986. See generally Fed. R.

Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .” (emphasis added)). No evidence regarding the Arkansas

conviction itself was introduced during the 1986 proceedings.

      Rather remarkably, the process more or less seemed to repeat itself in 2000.

Facing yet another drug charge and with perhaps undue faith in the adage that the

third time’s the charm, M r. Graham again tried the same “clothes-aren’t-mine”

                                          -3-
defense; the Kansas state court, in turn, permitted the prosecution to introduce

evidence from the 1986 trial to show M r. Graham’s peculiar attachment to this

defense and, thus, knowledge and lack of mistake.

      Given these facts, the district court assessing M r. Graham’s federal habeas

petition found no taint in his 2000 conviction. Evidence regarding the challenged

Arkansas conviction was not directly introduced in the 2000 trial. And the only

evidence from the Arkansas trial introduced in the 1986 proceeding concerned the

nature of the defense M r. Graham himself had asserted; evidence about the

allegedly unconstitutional Arkansas conviction was not presented even in the

1986 trial.

      2.      In his federal habeas petition, M r. Graham also contended that the

2000 Kansas trial court denied him adequate legal representation when he moved

to proceed pro se and withdraw his plea agreement. The Kansas Court of Appeals

assessing M r. Graham’s habeas petition, however, rejected this argument after

finding that the trial court had fully and adequately advised him of the potential

adverse consequences of his decision, and that his stand-by counsel was present

and available to him throughout the proceeding on his motion. The district court

assessing his federal habeas petition found nothing in this analysis contrary to

clearly established federal law .

      3.      Finally, M r. Graham argued that the state court in his 2000 case failed

to arraign him on all of the charges on which he w as eventually tried and thus,

                                            -4-
that the “trial court lacked jurisdiction due to a defective complaint.” The Kansas

Court of A ppeals, however, held this issue w aived under K ansas law because M r.

Graham did not raise a timely objection at trial or on direct appeal. This fact, the

district court held, was dispositive of M r. Graham’s federal habeas claim:

“[w]hen a federal habeas petitioner’s claim has been defaulted in state court on an

independent state ground, federal habeas courts will not generally address the

issue.” M em. and Order at 16 (citing Coleman v. Thom pson, 501 U.S. 722, 750

(1991); Klein v. Neal, 45 F.3d 1395, 1397 (10th Cir. 1995)). Still, the district

court added, review may be had for a procedurally defaulted claim on “a showing

of cause for the default and resulting prejudice, or in order to prevent a

fundamental miscarriage of justice.” Id. at 17 (citing Coleman, 501 U.S. at 750).

The district court proceeded to undertake an analysis of each of these requisites

and found the evidence on each prong wanting in this case. Id. at 17-20.

      On December 28, 2006, M r. Graham applied in the district court for a

Certificate of Appealability (“COA”). Citing AEDPA and Supreme Court

precedent, the district court denied the COA on January 3, 2007, ruling that M r.

Graham failed to make a “substantial showing of the denial of a constitutional

right.” Order of 01/03/2007 at 1-2 (citations omitted). M r. Graham also applied

to the district court for leave to appeal in form a pauperis, which the district court

denied after finding that M r. Graham had a gross annual income in excess of

$10,000 by virtue of his participation in a prison industries program; a prison

                                          -5-
savings account in excess of $2,700; and an institutional account in excess of

$700. The district court further found that, after M r. Graham’s assistance to his

widowed mother and payment of his prison room and board, he still netted

approximately $5,000 annually from his prison industries income. “In other

words, [M r. Graham] is not indigent.” Order of 02/01/2007 at 1. In the

alternative, the district court ruled that M r. Graham failed to “demonstrate the

existence of a reasoned, non-frivolous argument on the law and facts in support of

the issues raised on appeal.” Id. at 1-2.

      M r. Graham now seeks to appeal to us in order to pursue essentially the

same arguments he raised in the district court. W e may issue a COA “only if [M r.

Graham] has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). M r. Graham may make this showing by convincing us

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

constitutional claims debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322,

338 (2003). For substantially the same reasons given by the district court, and

summarized above, we find that M r. Graham fails to make this showing or to

satisfy established legal standards for proceeding in form a pauperis. See 28

U.S.C. § 1915; see also Fed. R. App. P. 24; 10th Cir. R. 24.1. Accordingly, M r.

Graham’s application for a COA and motion for leave to proceed in forma




                                            -6-
pauperis are denied and his appeal is dismissed.


                                      ENTERED FOR THE COURT



                                      Neil M . Gorsuch
                                      Circuit Judge




                                        -7-
