                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           July 30, 2012
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT


 TIMOTHY PENNINGTON,
                 Petitioner–Appellant,                          No. 12-3063
           v.                                        (D.C. No. 5:10-CV-03241-JTM)
 DAVID McKUNE, Warden,                                          (D. Kansas)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. A Kansas jury convicted

Petitioner of first-degree murder, burglary, and two misdemeanor offenses, and he was

sentenced to life plus twenty-nine months. His conviction and sentence were affirmed on

direct appeal. Petitioner then filed a state petition for post-conviction relief based on

ineffective assistance of counsel. The state district court denied his petition, and the

Kansas Court of Appeals affirmed the denial on appeal.

       In his federal habeas petition, Petitioner again alleged he was denied effective



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
assistance of counsel because (1) counsel failed to challenge a jailhouse informant’s

testimony under the Fifth and Sixth Amendments, (2) counsel failed to request a hearing

to determine if Petitioner’s confession to the jailhouse informant was voluntarily made,

and (3) counsel conceded to the jury that Petitioner was guilty of the burglary charge,

contrary to his plea of not guilty to that charge. The district court concluded that the state

courts had not unreasonably applied Supreme Court precedent in rejecting these claims in

the state court proceedings, and the district court accordingly denied the petition for relief

under 28 U.S.C. § 2254(d)(1).

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s denial of habeas

relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). It was not unreasonable for the

state courts to deny Petitioner’s claims regarding the jailhouse informant’s testimony

under Texas v. Cobb, 532 U.S. 162 (2001) and Illinois v. Perkins, 496 U.S. 292 (1990),

since Petitioner’s confession involved an offense on which he had not yet been charged

and was made to a fellow inmate, not a uniformed police officer. Nor was it unreasonable

for the state courts to conclude that counsel made a reasonable tactical decision to

concede the inevitable on the burglary charge in an attempt to avoid a guilty verdict on

the much more serious murder charge. Nothing in Petitioner’s application for a certificate

of appealability would cause reasonable jurists to debate the district court’s denial of

habeas relief. Therefore, for substantially the same reasons given by the district court and

state courts, we DENY Petitioner’s request for a certificate of appealability and

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DISMISS the appeal.


                            ENTERED FOR THE COURT



                            Monroe G. McKay
                            Circuit Judge




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