                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               FEB 7 2005
                     UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                   Clerk
                                  TENTH CIRCUIT



 CELESTER McKINNEY,

                Petitioner - Appellant,

           v.                                                 No. 04-3308
                                                     (D. Ct. No. 02-CV-3248-JAR)
 L.E. BRUCE, Warden, Hutchinson                                (D. Kan.)
 Correctional Facility; and PHILL
 KLINE, Attorney General of Kansas        1
                                              ,

                Respondents - Appellees.


                                          ORDER


Before TACHA , Chief Circuit Judge,           BRISCOE and HARTZ , Circuit Judges.


       Petitioner-Appellant Celester McKinney applies for a certificate of

appealability (“COA”) under 28 U.S.C. § 2253(c) so that he may challenge the

District Court’s denial of his 28 U.S.C. § 2254 habeas petition.   2
                                                                       Mr. McKinney


      In the District Court, Mr. McKinney listed Carla J. Stovall, the former
       1

Kansas Attorney General, as codefendant.
       2
        Mr. McKinney first sought a COA from the District Court, but the District
Court never ruled on that motion. Mr. McKinney then filed a timely notice of
appeal, a renewed motion for a COA, and an opening brief with this Court.
Because the District Court did not issue Mr. McKinney a COA within thirty days
of his notice of appeal, we deem the District Court to have denied Mr. McKinney
                                                                    (continued...)
also requests leave to proceed in forma pauperis. After examining the record in

this case, we DENY Mr. McKinney’s application for a COA but GRANT his

request to proceed in forma pauperis.

      Mr. McKinney, his brother Dwayne McKinney, and their cousin Brian

Betts were charged with first-degree premeditated murder of Greg Miller. They

were accused of shooting Mr. Miller eighteen times with both a shotgun and a

rifle. Separate juries entered verdicts against Mr. McKinney and Brian Betts, and

a verdict to acquit Dwayne McKinney. The Kansas Supreme Court, on direct

appeal, provided a thorough account of the facts underlying Mr. McKinney’s

conviction for first-degree premeditated murder. See State v. McKinney, 33 P.3d

234 (Kan. 2001). The District Court fully recounts the facts as well. As such,

we refer to the facts of this case only as needed in our analysis.

      Issuance of a COA is jurisdictional.         Miller-El v. Cockrell , 537 U.S. 322,

336 (2003). A COA can only issue “if the applicant has made a substantial

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

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that



      2
        (...continued)
a COA. See Emergency General Order, In re Procedures Regarding the Prison
Litigation Reform Act and the Antiterrorist and Effective Death Penalty Act , No.
96-41 (10th Cir. Oct. 1, 1996).

                                             -2-
jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.”   Miller-El , 537 U.S. at 327. Whether a petitioner meets the

criteria for the issuance of a COA must be made in light of t   he provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Dockins v.

Hines , 374 F.3d 935, 937 (10th Cir. 2004). Pursuant to AEDPA, we must defer to

a state court decision adjudicated on the merits unless that decision: “(1) was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) . . .

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

       Mr. McKinney seeks a COA on four issues. Because we hold that

reasonable jurists could not disagree with the District Court’s well-reasoned and

thorough memorandum and order on these issues, we deny his application for a

COA. Moreover, because our analysis of these issues is substantially similar to

the District Court’s, we review Mr. McKinney’s claims only briefly.

       First, Mr. McKinney alleges a Confrontation Clause violation. At trial, the

prosecution called Jimmy Spencer, Jr., the victim’s uncle, who testified that a few

minutes before the gunshots were fired, the victim left Mr. Spencer’s house,

telling him that “Les” wanted to talk to him and he was leaving to go see what

“Les” wanted. Mr. Spencer thought that the victim was referring to Celester

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McKinney. These statements were admitted pursuant to Kan. Stat. Ann. §

60-460( l)(1), which allows the admission of hearsay statements of the declarant’s

then-existing state of mind, including statements of intent or plan. Despite this

statutory authority, Mr. McKinney contends their admission violates the Sixth

Amendment.

       The Kansas Supreme Court applied the two-part test established in            Ohio v.

Roberts , 448 U.S. 56 (1980), to determine the constitutionality of the statement’s

admission. McKinney , 33 P.3d at 342–44. Under           Roberts , a statement is

admissible without confrontation of the witness at trial, if the witness is

unavailable and the witness’s statement “bears adequate ‘indicia of reliability.’”

Roberts , 448 U.S. at 66. A statement bears adequate indicia of reliability if it

falls within a “firmly rooted hearsay exception,” such as the state-of-mind

exception codified at Kan. Stat. Ann. § 60-460(       l)(1). Id; see also Moore v.

Reynolds , 153 F.3d 1086, 1107 (10th Cir. 1998) (holding that state of mind

exception to the hearsay rule satisfies the reliability requirement of     Roberts ).

Hence, the victim’s statement was constitutionally admitted pursuant to         Roberts .

       After the Kansas Supreme Court completed its direct review, however, the

United States Supreme Court partially overruled         Roberts . See Crawford v.

Washington , 541 U.S. 36, 124 S.Ct. 1354 (2004). Of course, most new



                                             -4-
constitutional rulings do not apply retroactively on habeas review.     See Teague v.

Lane , 489 U.S. 288, 310–11 (1989). Nevertheless, we need not consider whether

Crawford applies retroactively because even if it does, Mr. McKinney’s claim

falls outside the scope of the   Crawford rule.

       Crawford distinguishes between testimonial and non-testimonial

statements. 541 U.S. at —, 124 S.Ct. at 1374. Testimonial statements include

formal statements to government officials, affidavits, testimony at a preliminary

hearing, and statements taken by police officers during criminal investigations.

Id. at 1364–65. The admissibility of these statements are now subject to the

traditional common law test of unavailability and prior opportunity for cross-

examination. Id. at 1374. Non-testimonial statements, by contrast, continue to be

analyzed under the Roberts regime. Id. As the District Court explained, the

victim’s statements made immediately before his death in his uncle’s home are

non-testimonial statements. Dist. Ct. Op. at 11–12;      see also Horton v. Allen , 370

F.3d 75, 84 (1st Cir. 2004) (holding statements made on the day of the murders

recounting that defendants’ accomplice had told a witness that he needed money

and that the victim had refused to give him drugs on credit, which were admitted

under the state of mind exception, were non-testimonial). As such, even if

Crawford applied retroactively, the Kansas Supreme Court properly analyzed this

claim under the Roberts regime and found no constitutional violation.

                                            -5-
      Second, Mr. McKinney argues that the prosecutor’s closing argument

violated his due process rights. Carter Betts, who is Mr. McKinney’s uncle and a

key prosecution witness, testified that on the night of the shooting the three

defendants were watching television in his home when he went to bed, that he

heard gunshots and the door closing around 3    A . M .,   that when he went downstairs

to investigate he saw the three defendants with firearms laying at their feet, and

that Mr. McKinney stated, “we shot that Greg.” During closing arguments, the

prosecutor stated that Carter Betts’s testimony was not refuted. Mr. McKinney

contends that the prosecutor’s closing argument improperly shifted the burden of

proof to the defendant.

      We agree with the District Court and find that the prosecutor’s statements

at closing do not run afoul of the Due Process Clause. Importantly, the

prosecutor did not comment on Mr. McKinney’s failure to testify; as such, his

Fifth Amendment right to remain silent was not implicated.          See Griffin v.

California , 380 U.S. 609, 613–15 (1965). Next, during closing a prosecutor may

properly comment that evidence is not contradicted or rebutted, so long as the

prosecutor does not create the impression that only the defendant could rebut the

evidence. See Trice v. Ward , 196 F.3d 1151, 1167 (10th Cir. 1999) (prosecutor

may comment on defendant’s failure to present evidence or call witnesses);

Nguyen v. Reynolds , 131 F.3d 1340, 1358 (10th Cir. 1997) (comments did not

                                          -6-
clearly point out petitioner’s failure to testify or create impression only petitioner

could rebut statement). The prosecutor’s statement in this case clearly did not

create such an impression and therefore did not violate Mr. McKinney’s due

process rights.

      Third, Mr. McKinney contends that the trial court’s handling of a question

from the jury violated his right to be present during the trial and his right to an

impartial jury. During deliberations, the jury sent a note to the trial judge, which

stated: “Carter Betts statement(s) about the conversation in the basement.” The

trial judge considered this note ambiguous, and without first conferring with

parties and counsel, the judge directed the bailiff to return the note to the jury and

ask them to be more specific. The jury returned a second note, stating: “We want

the trial testimony of Carter Betts’ conversation in the basement. Also the

testimony of Carter Betts preliminary hearing of the conversations in the

basement.” At this point, the judge notified the parties and informed them about

the first note, the request for clarification, and the contents of the second note.

The judge then laid out the following course of action: he intended to read those

portions of the direct and cross-examinations of Carter Betts pertaining to the

conversations in the basement; advise the jury that there was no transcript of the

preliminary hearing admitted as evidence; and ask the jury if that would answer

their question. Mr. McKinney objected, arguing that the first note asked for

                                          -7-
Carter Betts’s statement to the police, not his in-court testimony. Over this

objection, the trial judge proceeded with his plan.

       Mr. McKinney raises two distinct challenges on this score. He first

contends that finding the first note ambiguous and asking for clarification without

his presence violates his “right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would contribute to the

fairness of the procedure.”   Kentucky v. Stincer , 482 U.S. 730, 745 (1987). The

Kansas Supreme Court agreed, but held that the error was harmless.       McKinney ,

33 P.3d at 243.

       Under 28 U.S.C. § 2254(d), we defer to this determination unless “the state

court’s finding of harmless error was contrary to or an unreasonable application

of Chapman .” Spears v. Mullin , 343 F.3d 1215, 1232 n.14 (10th Cir. 2003). Mr.

McKinney urges that Illinois v. Allen , 397 U.S. 337 (1970), and     United States v.

Gagnon , 470 U.S. 522 (1985), demonstrate that the Kansas Supreme Court’s

determination of harmlessness was objectively unreasonable. We disagree.

Neither case discusses harmless error; to the contrary, the Court in both cases

held that a constitutional violation did not occur. Moreover, we agree with the

Kansas Supreme Court’s determination that the jury was given ample opportunity

to request Carter Betts’s police statement, if it had so desired, rendering the error

harmless. McKinney , 33 P.3d at 242–43.

                                          -8-
      Mr. McKinney also contends that the reading back of testimony to the jury

violated his right to a fair trial before an impartial jury. Under Kansas law, the

jury enjoys the right to have testimony read back to it. Kan. Stat. Ann. §

22-3420(3). Mr. McKinney does not cite, nor can we find, any clearly established

Supreme Court precedent that renders application of § 22-3420(3)

unconstitutional under these circumstances.

      Finally, Mr. McKinney argues that the trial court violated his rights to due

process and a fair trial when it denied his request for a new trial. Carter Betts

testified that in his initial statement to the police, he had stated that the three

defendants were in bed asleep at the time the shots were fired. When he was later

questioned at the police station, however, he changed his story out of fear of

being implicated in the murder. At trial, he testified that on the night of the

shooting the three defendants were watching television in his home when he went

to bed, that he heard gunshots and the door closing around 3     A . M .,   that when he

went downstairs to investigate he saw the three defendants with firearms laying at

their feet, and that Mr. McKinney stated, “we shot that Greg.” After the trial,

Carter Betts signed a letter authored by his sister, the mother of Mr. McKinney,

which stated that he wanted to discredit his testimony. At the hearing for a new

trial, Carter Betts testified that his trial testimony was given under duress because

it was difficult to speak out against his nephews.

                                           -9-
       The trial court found that Carter Betts’s trial testimony was truthful and

therefore denied Mr. McKinney’s motion for a new trial. The Kansas Supreme

Court affirmed the denial, concluding that the trial court did not abuse its

discretion in finding Mr. Betts’s testimony truthful.      McKinney , 33 P.3d at

338–39. Mr. McKinney has not demonstrated that this factual finding is clearly

and convincingly incorrect. Therefore, we must defer to the state court’s

determination.   See 28 U.S.C. § 2254(e)(1). Because we must deem that the

evidence given at trial by Carter Betts was truthful, Mr. McKinney cannot make

out a due process claim for the denial of the motion for retrial.    See Giglio v.

United States , 405 U.S. 150, 154 (1972).

       Because we hold that reasonable jurists could not disagree with the District

Court’s disposition of this habeas petition, Mr. McKinney’s application for a

COA is DENIED. His motion to proceed in forma pauperis is GRANTED.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




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