                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           AUG 28 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    KEVIN D. LOGGINS,

                  Petitioner - Appellant,

    v.                                                   No. 01-3311
                                                  (D.C. No. 99-CV-3102-DES)
    ROBERT D. HANNIGAN                                    (D. Kansas)
    and ATTORNEY GENERAL
    OF KANSAS,

                  Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, 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      This order and judgment is not binding precedent, except under the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 Kevin D. Loggins, appearing    pro se , appeals the district court’s

denial of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2254. Because petitioner has not made a substantial showing of the denial of

a constitutional right, we deny his application for a certificate of appealability

and dismiss the appeal.

      Petitioner is currently serving consecutive sentences totaling 678 months,

based on his Kansas state convictions for aggravated robbery, aggravated

kidnaping, aggravated burglary, aggravated sexual battery, and criminal

possession of a firearm. These convictions arose out of two residential armed

robberies in 1995. During one of the robberies, while petitioner held a gun to the

head of the husband/victim, petitioner’s accomplice forced the wife/victim to her

car where a third accomplice sexually battered her. Petitioner’s conviction for

aggravated sexual battery is based on his role in facilitating this incident.

      In May 1998, the Kansas Court of Appeals affirmed all of petitioner’s

convictions except one, and the Kansas Supreme Court denied review in July

1998. On March 16, 1999, petitioner filed this federal habeas petition, claiming

that (1) the evidence generally was insufficient to support his convictions; (2) the

evidence did not support the aggravated sexual battery and aggravated kidnaping

convictions because the sexual battery was not foreseeable and did not constitute

bodily harm; (3) witnesses’ references to his “Blood” tattoo and “mug shots”


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violated a motion in limine and thereby deprived him of due process; and (4) the

trial court’s failure to instruct the jury sua sponte on the lesser-included offense

of simple kidnaping deprived him of due process.     See R., doc. 1 at 6-10.

      On September 11, 2001, the district court denied the habeas petition,

holding that the evidence was sufficient to support each of petitioner’s

convictions; that petitioner was not entitled to habeas relief due to the state court

determinations that the sexual battery was foreseeable and constituted bodily

harm; that petitioner’s challenge to the reference to his tattoo was procedurally

barred; that the reference to mug shots did not cause the trial to become

fundamentally unfair; and that petitioner’s claim regarding instruction on a

lesser-included offense was not cognizable under § 2254 because it was an issue

of state law. The district court also denied petitioner’s motion to stay the habeas

proceeding so that petitioner could exhaust additional claims in the state court.

      Before we may consider his appeal, petitioner must obtain a certificate of

appealability by making a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). If the district court denied an issue on its merits,

petitioner may make this showing by demonstrating that “reasonable jurists would

find the district court’s assessment of [his] constitutional claims debatable or

wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). If the claim was denied

upon a procedural ground, however, petitioner must show both that the procedural


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ruling is debatable and that his petition stated a valid claim of the denial of

a constitutional right.   Id. Petitioner has not demonstrated his entitlement to a

certificate of appealability on any of his issues.

       Our review of the record reveals that there was more than sufficient

evidence to support each of petitioner’s convictions. In addition to circumstantial

evidence, all of the victims identified petitioner as a participant in the armed

robberies. The fact that petitioner was wearing a ski mask during the second

robbery did not make the victims’ identification speculative, given that petitioner

lived two houses away and the victims were familiar with his voice and build.

       Further, petitioner has not made a substantial showing that the Kansas

Court of Appeals deprived him of a constitutional right by holding that sexual

battery was a foreseeable occurrence during the commission of an aggravated

robbery. As other courts have noted, sexual misconduct frequently occurs in the

context of a residential robbery.     See, e.g., People v. Nguyen , 26 Cal. Rptr. 2d

323, 332 (Cal. Ct. App. 1993);      State v. Pierce , 364 N.W.2d 801, 810

(Minn. 1985).

       Petitioner also did not show that he was deprived of a constitutional right

by the state court’s decision that sexual battery satisfied the aggravated

kidnaping’s requirement of bodily harm. This state law issue is not cognizable

under § 2254 unless the state court’s interpretation was unforeseeable.      See


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Hawkins v. Mullin , 291 F.3d 658, 662-63 (10th Cir. 2002). So too, the court’s

failure to give a lesser-included offense in a non-capital case does not raise a

federal constitutional question, and thus cannot form the basis for habeas relief.

See Fero v. Kerby , 39 F.3d 1462, 1480 (10th Cir. 1994);        Lujan v. Tansy , 2 F.3d

1031, 1036 (10th Cir. 1993).

       Petitioner also has not made a substantial showing that witnesses’

references to his tattoo and mug shots violated his right to due process. Although

the district court denied petitioner’s claim regarding his tattoo based on

procedural bar, we elect to consider the merits of the claim.       See Romero v.

Furlong , 215 F.3d 1107, 1111 (10th Cir.) (holding appellate court need not

address procedural bar when merits may be addressed more simply and

succinctly), cert. denied , 531 U.S. 982 (2000). In light of the overwhelming

evidence against petitioner, it is highly unlikely that the witnesses’ limited

statements influenced the outcome of the trial.     See Moore v. Gibson , 195 F.3d

1152, 1167 (10th Cir. 1999) (holding that habeas relief is not available unless an

evidentiary “error, if any, was so grossly prejudicial that it fatally infected the

trial and denied the fundamental fairness that is the essence of due process”)

(quotation omitted).

       We will not consider petitioner’s argument that forcing the wife/victim

to her car was insufficient to support the kidnaping charge as this issue was


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first raised in petitioner’s traverse to respondents’ answer to the habeas petition.

See Cacoperdo v. Demosthenes , 37 F.3d 504, 507 (9th Cir. 1994) (holding that

“[a] Traverse is not the proper pleading to raise additional grounds for relief,”

and thus an issue first raised in a traverse is not cognizable on appeal). Similarly,

we will not consider petitioner’s argument that the failure to instruct on a lesser

included offense denied him his right to present a defense because he did not raise

such an argument on direct appeal or in his habeas petition. We note, however,

that petitioner’s defense was based on his alibi witness, and that this defense was

fully presented to the trier of fact.

       Finally, petitioner has not shown that the district court’s discretionary

denial of his stay motion violated his constitutional rights. As noted by the

district court, any issues petitioner seeks to exhaust are already foreclosed as

untimely under 28 U.S.C. § 2244(d)(1), and petitioner cannot possibly show that

he exercised due diligence in raising his claims.   See Miller v. Marr , 141 F.3d

976, 978 (10th Cir. 1998).

       All outstanding motions are DENIED. Petitioner’s request for a certificate

of appealability is DENIED and his appeal is DISMISSED.

                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge

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