                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 29 2003
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 NASIF GADELKARIM,

          Petitioner - Appellant,
 v.                                                    No. 02-3132
                                                 D.C. No. 99-CV-3120-DES
 ROBERT D. HANNIGAN;                                    (D. Kansas)
 ATTORNEY GENERAL OF
 KANSAS,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Nasif Gadelkarim, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying relief on his petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. Because Mr. Gadelkarim has failed to make “a substantial


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
showing of the denial of a constitutional right” as required by 28 U.S.C. §

2253(c)(2), we deny his request and dismiss the appeal.

      Mr. Gadelkarim was convicted by a jury in Kansas state court of indecent

liberties with a child and was sentenced to 5 to 20 years of imprisonment. While

out on bond prior to sentencing, Mr. Gadelkarim murdered the mother of the child

with whom he had taken indecent liberties. He was eventually convicted by a jury

in Kansas state court of the murder, and was sentenced to life in prison, to run

consecutively to his sentence for indecent liberties. Mr. Gadelkarim filed direct

appeals of both of his convictions, but each was affirmed. After exhausting his

direct appeals, Mr. Gadelkarim filed two state post-conviction appeals as to the

indecent liberties conviction and one state post-conviction appeal as to the murder

conviction. Each post-conviction appeal was denied.

      Mr. Gadelkarim then filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 asserting the following four grounds for relief from his murder

conviction: (1) denial of his Sixth Amendment right to self-representation; (2)

denial of due process for failure to appoint a translator to assist in his defense; (3)

abuse of discretion for dismissing his state post-conviction appeal without an

evidentiary hearing and appointment of counsel; and (4) the state appellate courts

erroneously ruled that evidence of his prior conviction for indecent liberties was

admissible at the murder trial. As a ground for relief from the indecent liberties


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conviction, Mr. Gadelkarim also asserts that the Kansas courts erred in failing to

rule that he was improperly charged and convicted of indecent liberties as

opposed to the more specific crime of aggravated incest. He contends that a

common law marriage existed between him and the murder victim whose son was

sexually abused, thereby making the more specific crime applicable.

      After detailed consideration of Mr. Gadelkarim’s arguments, the district

court denied his petition. The court concluded that grounds one and two (the self-

representation and due process claims) were procedurally barred because they

were raised for the first time in state post-conviction proceedings and likewise

concluded that Mr. Gadelkarim did not show cause and prejudice nor a

fundamental miscarriage of justice sufficient to defeat the procedural bar on those

grounds. Although the court concluded that Mr. Gadelkarim had failed to allege

facts to indicate ineffective assistance either as a separate claim or as giving rise

to cause and prejudice, the court also addressed the merits of grounds one and two

and found them lacking. The court addressed all remaining claims on the merits

and found that they were properly resolved by the state courts.

      Mr. Gadelkarim is now before us seeking a COA, renewing each claim

advanced before the district court. He also now alleges ineffective assistance of

counsel both as a separate claim and as a source of cause and prejudice to defeat

procedural bar on the first two grounds.


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      In order for this court to grant a COA, Mr. Gadelkarim must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Where the district court has rejected Mr. Gadelkarim’s constitutional

claims on the merits, he must demonstrate that “reasonable jurists would find the

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

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has

rejected Mr. Gadelkarim’s constitutional claims on procedural grounds without

reaching the merits, he must demonstrate 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.

      Regarding those claims presented to the Kansas state courts either on direct

appeal or on post-conviction appeal which were denied, the district court could

not properly issue a writ of habeas corpus unless it found that the state court

adjudication resulted in a decision that “was contrary to, or involved an

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

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). It is against these standards that the district

court’s denial of Mr. Gadelkarim’s petition must be assessed.

      Having carefully reviewed the district court’s analysis of Mr. Gadelkarim’s


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claims on appeal and the relevant record, we conclude that he has failed to

demonstrate 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. Regarding grounds disposed of on the merits, Mr. Gadelkarim has

likewise demonstrated no reason for us to conclude that reasonable jurists would

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

wrong. In fact, we are persuaded that the reasoning of the district court is sound

and we agree that the state courts’ conclusions were not contrary to and did not

involve an unreasonable application of clearly established federal law.

      Although Mr. Gadelkarim now claims several instances of ineffective

assistance of counsel, he fails to allege facts sufficient to support the

unreasonable performance claims and consistently fails to satisfy his burden to

demonstrate prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984); id. at 694 (“The defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”) (emphasis added).




                                          -5-
      For substantially the reasons given by the district court, we conclude that

none of Mr. Gadelkarim’s claims suffice to make a substantial showing of a

denial of a constitutional right, and accordingly we DENY a COA and DISMISS

the appeal.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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