                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 11 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    BRIAN K. BURKHOLDER,

                Petitioner-Appellant,

    v.                                                  No. 03-3259
                                                 (D.C. No. 02-CV-3275-JWL)
    L.E. BRUCE; ATTORNEY                                  (D. Kan.)
    GENERAL OF THE STATE OF
    KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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-appellant, proceeding     pro se , appeals the district court’s order

denying his petition for habeas corpus relief under 28 U.S.C. § 2254. The district

court granted a certificate of appealability to consider whether the state trial court

had violated petitioner’s Sixth Amendment rights (1) by denying petitioner’s

motion to substitute counsel the day before his trial for burglary and theft, or (2)

by denying his motion in the alternative to proceed      pro se in that trial.

       Petitioner alleges that the state trial court abused its discretion by finding

his request to substitute counsel on the eve of trial untimely and by not making

further inquiry into why he had requested new counsel. Petitioner also asserts

that the district court committed reversible error when it determined that he was

not competent to represent himself because he was illiterate and admitted that he

did not understand the charges against him. We affirm the denial of petitioner’s

petition for a writ of habeas corpus for substantially the reasons stated by the

district court.

       We review a district court’s conclusions of law      de novo and its findings of

fact, if any, for clear error.   LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir.

1999). Under 28 U.S.C. § 2254(d)(1)-(2), no writ of habeas corpus shall issue

unless the decision of the state court either was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or . . . was based on an unreasonable


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determination of the facts in light of the evidence presented in the State court

proceeding.”

      Having reviewed the briefs, the record, and the standards applicable to

petitions for a writ of habeas corpus, we hold that petitioner has raised no ground

for a writ to issue in this case. Accordingly, we AFFIRM the denial of a writ of

habeas corpus for substantially the reasons stated by the district court.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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