                    UNITED STATES CO URT O F APPEALS

                           FO R TH E TENTH CIRCUIT



 PA TRIC K C . LY N N ,

              Petitioner-A ppellant,

 v.                                                     No. 05-3470
                                                 (D.C. No. 03-CV-3464-JAR)
 RAY ROBERTS, W arden, El Dorado
 Correctional Facility; PHILL KLINE,
 Attorney General of Kansas,

              Respondents-Appellees.



                                       OR DER


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




      This matter comes before the panel on M r. Lynn’s motion for an extension

of time and his petition for rehearing or for rehearing en banc. His motion for a

third extension of time to file his petition is granted. Upon consideration of the

petition, the panel grants rehearing in part, withdraws the Order filed on

September 1, 2006, and issues the attached Order and Judgment in its place. The

panel denies the petition for rehearing in all other respects.

      The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no judge in regular active service
on the court requested that the court be polled on the en banc request, the petition

for rehearing en banc is denied.



                                               Entered for the Court
                                               ELISABETH A. SHUM AKER, Clerk


                                               By:
                                                     Deputy Clerk




                                         -2-
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                       November 28, 2006
                              FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                           Clerk of Court

    PA TRIC K C . LY N N ,

               Petitioner-A ppellant,

      v.                                                   No. 05-3470
                                                    (D.C. No. 03-CV-3464-JAR)
    RAY ROBERTS, W arden, El Dorado                          (D . Kan.)
    Correctional Facility; PHILL
    KLINE, Attorney General of K ansas,

               Respondents-Appellees.



                               OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




           Patrick C. Lynn, a Kansas state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. W e grant COA on three

issues, and because M r. Lynn has had ample opportunity to brief his arguments, 1

*
       After examining the appellant’s filings 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 is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel.
1
           In addition to his application for COA, M r. Lynn has filed an Opening
                                                                          (continued...)
we decide the merits of those issues and AFFIRM the judgment of the district

court.

                                            I.

         In 1996, M r. Lynn was convicted of aggravated burglary, aggravated

kidnaping, rape, and aggravated sodomy after a trial in Kansas state court. After

his sentences were reversed by the Kansas Court of Appeals in his first direct

appeal and the Kansas Supreme Court in a second direct appeal, in 2004 M r. Lynn

was resentenced to a term of imprisonment of 49 years and 8 months.

         In his § 2254 petition, M r. Lynn asserted four claims: (1) ineffective

assistance of counsel, (2) prosecutorial misconduct, (3) newly discovered

evidence that had been suppressed during his trial, and (4) errors by the trial court

that violated his Sixth and Fourteenth A mendment rights. He later filed a more

definite statement fleshing out his claims and adding claims of (5) trial court

errors that violated the Kansas Constitution and Brady v. M aryland, 373 U.S. 83

(1963), (6) judicial misconduct, and (7) trial court error in refusing to allow him




1
 (...continued)
Brief and documents entitled Supplemental Arguments for Relief, M otion for
Serious Sanctions, Request for Orders; Second Supplemental Arguments for
Relief and M otion for Very Serious Sanctions, Request for Orders and
Evidentiary Hearing Remand; Supplement to Rehearing/EnBanc Request and
M otion for Orders; Appellant’s Affidavits of Events and Request for Out of Time
Filing if Briefs Not Received or Timely Filed; and Emergency M otion for Orders
and Request for Stay Until Resolved Due to Deliberately Illegal Conditions.

                                           -2-
to argue trial errors before his resentencing. Liberally construing his claims, the

district court denied relief and denied a COA.

                                          II.

                                Standards of Review

      A COA may issue only if the appellant makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For claims rejected on

the merits, “[t]he petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. M cDaniel, 529 U.S. 473, 484 (2000). For claims rejected on procedural

grounds, “a CO A should issue when the prisoner shows, at least, 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. Our COA

analysis is limited to “an overview of the claims in the habeas petition and a

general assessment of their merits” rather than “full consideration of the factual

or legal bases adduced in support of the claims.” M iller-El v. Cockrell, 537 U.S.

322, 336 (2003).

       “W e review the district court’s legal analysis of the state court decision de

novo.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). For claims

decided by the Kansas courts, M r. Lynn “is entitled to federal habeas relief only

if the state court decision ‘was contrary to, or involved an unreasonable

                                          -3-
application of, clearly established Federal law, as determined by the Supreme

Court of the United States,’ or ‘was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.’” Id.

(quoting 28 U.S.C. § 2254(d)(1)-(2)). Claims that were presented to, but not

decided by, the state courts are not constrained by the § 2254(d) standards. See

Sperry v. M cKune, 445 F.3d 1268, 1274-75 (10th Cir. 2006). In such instance, w e

review questions of law de novo. Id. at 1275.

                                    COA Analysis

      In his filings before this court, M r. Lynn urgently requests that someone

listen to his pleas and consider his arguments. W e have done so, giving his issues

careful and serious consideration. W e also have review ed two boxes of state

court records and a box of district court records. 2 Although we grant COA on

three issues, as explained below , ultimately we conclude that M r. Lynn’s

arguments are not sufficient for habeas relief. 3




2
       M r. Lynn complains the appellate record does not contain the entire state
court record. W e acknowledge the appellate record does not contain certain
evidence and documents he references. W e need not require the production of
such items, however, because for purposes of our review, we have assumed
M r. Lynn’s description of any missing item or document is true and accurate.
3
      On appeal, M r. Lynn also extensively complains about prison restrictions
on paper, stamps, envelopes, copies and writing utensils. As the district court
explained to M r. Lynn, these types of conditions-of-confinement claims by state
prisoners must be brought in actions under 42 U.S.C. § 1983; they do not justify
habeas relief. See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000).

                                          -4-
      W e disagree that the district court should have afforded M r. Lynn an

evidentiary hearing, allowed him to pursue discovery, and appointed him counsel;

that it erred in refusing to order the production of state court records; and that it

erred in refusing to transfer prior pleadings and exhibits. W ith the exception of

three issues, we adopt the district court’s thorough analysis and deny a COA for

substantially the reasons expressed in the November 1, 2005 M emorandum and

Order Denying M otion Under 28 U.S.C. § 2254. 4 The three exceptions are

M r. Lynn’s Brady claims, trial error claims, and judicial misconduct claims.

Finally, to the extent M r. Lynn raises new issues on appeal, we do not consider

them. See Singleton v. Wulff, 428 U.S. 106, 120 (1976).

      In one part of its decision, the district court stated the Brady claims “would

be procedurally barred in this Court because the Kansas state courts never

addressed petitioner’s Brady arguments.” R. Doc. 77 at 28. In the next section,

the court indicates that the Brady claims had never been presented to the state

courts, not just that the state courts had never decided them. Id. at 29. It appears,

however, that M r. Lynn raised his Brady arguments before the state appellate




4
       To the extent that the district court failed to rule on M r. Lynn’s claim that
he was denied the opportunity to present claims of trial error before resentencing,
we note that M r. Lynn’s right to allocution at sentencing stems from Kan. Stat.
Ann. §§ 22-3422 and 22-3424(e)(4). Federal habeas relief is not available for
violations of state law. See Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991).

                                           -5-
court in his first direct appeal, albeit in his pro se reply brief. 5 As discussed

above, a state court’s decision not to address an issue does not preclude review ; it

merely affects the standard of review . Because reasonable jurists “would find it

debatable whether the district court was correct in its procedural ruling” and

“would find it debatable whether the petition states a valid claim of the denial of

a constitutional right,” Slack, 529 U.S. at 484, we grant COA on the issue of

whether M r. Lynn’s constitutional rights, as explained by Brady, were violated.

      As for the trial error and judicial misconduct claims, the district court

stated those claims could not be raised in a § 2254 proceeding because they had

not been raised in the state courts. To the contrary, a procedural default can be

overcome on habeas by showing cause and prejudice for failure to raise the

defaulted claim or a fundamental miscarriage of justice. See, e.g., House v. Bell,

126 S. Ct. 2064, 2076 (2006); Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

Thus, reasonable jurists “would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 484. M r. Lynn facially

alleged these claims in his habeas pleadings, and thus, reasonable jurists w ould

also find it debatable that the petition states a valid claim of the denial of a



5
      M r. Lynn’s Brady arguments appear to concern the non-production of a
M ay 16, 1996 surveillance tape of proceedings at the police station after his arrest
and a M ay 16, 1996 mug shot. To the extent he also claims that certain evidence
about the victim and her medical reports was suppressed in violation of Brady,
M r. Lynn’s own arguments show that such information was disclosed by the
prosecution to defense counsel prior to trial, and thus Brady is not implicated.

                                           -6-
constitutional right. See Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir.

2000). Thus, we grant COA on the questions of whether trial court errors or

judicial misconduct violated M r. Lynn’s constitutional rights.

                                    M erits Analysis

                                     Brady Claims

      Under Brady and its progeny, constitutional error results from the

suppression of evidence “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quotation omitted).

“The question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Id. at 434. Having undertaken a de novo review of M r. Lynn’s

Brady claims, we do not believe that it is reasonably probable that pre-trial

disclosure of the 5/16/96 surveillance videotape and the 5/16/96 mug shot would

have led to a different result at M r. Lynn’s trial or that the evidentiary

suppressions undermined confidence in the outcome of M r. Lynn’s trial.

Particularly, assuming that the 5/16/96 booking room videotape shows what

M r. Lynn avers (that his pants were zipped and buttoned at the police station),

given that the tape recorded events at a different locale than, and sometime after,

M r. Lynn’s arrest, we do not believe that such evidence necessarily contradicts

                                           -7-
the testimony of the officers about the state of M r. Lynn’s clothing when they

arrested him. Neither the videotape nor the mug shot “could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the

verdict.” Id. at 435.

                    Trial Error and Judicial M isconduct Claims

      In order to move forward with these claims, M r. Lynn first must overcome

his procedural default by showing cause and prejudice. Ineffective assistance of

counsel may be cause for a default, see Edwards, 529 U.S. at 451, but we find no

ineffective assistance. The claims lack merit, and thus counsel’s failure to argue

them w as not deficient performance. See Sperry, 445 F.3d at 1275. For the same

reason, M r. Lynn cannot show prejudice from the failure to raise them before the

state courts, and we also find no fundamental miscarriage of justice would arise

from a failure to address these claims. Consequently, the trial error and judicial

misconduct claims are procedurally defaulted and do not entitle M r. Lynn to

habeas relief.

                                       III.

      M r. Lynn’s A ffidavits of Events and Request for Out of Time Filing is

GRANTED to the extent that his application for COA and opening brief are

allowed to be filed. His Supplemental Arguments for Relief filed June 21, 2006

and Second Supplemental A rguments for Relief filed July 21, 2006 are allowed to

the extent that the filings further explain his application for COA and opening

                                         -8-
brief. The motions for sanctions and further orders in those filings are DENIED.

His February 8, 2006 letter, construed as a M otion for Recusal, and his

Emergency M otion for Orders are DENIED. His Petition for Time Extension and

Emergency Intervention Orders and Supplement to Rehearing/En Banc Request

and M otion for Orders are DENIED as moot. Any other pending motions or

requests are DENIED. M r. Lynn’s request for a certificate of appealability is

GRANTED in part and DENIED in part as explained in this order and judgment.

As to the issues on which COA is granted, the judgment of the district court is

AFFIR M ED.



                                                    Entered for the Court


                                                    Stephen H. Anderson
                                                    Circuit Judge




                                         -9-
