                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 21, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 A N TH O NY EA RL K EN N ED Y ,

                 Petitioner - A ppellant,               No. 05-2363
          v.                                          (D. New M exico)
 ERASM O BRAVO, W arden, Lea                  (D.C. No. CV -04-506 M V/LCS)
 County Correctional Facility;
 A TTO RN EY G EN ER AL FO R THE
 STA TE OF N EW M EX IC O,

                 Respondents - Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Appellant Anthony Earl Kennedy is currently serving a seven-year sentence

for cocaine trafficking in violation of New M exico law. He appealed to the New

M exico Court of Appeals, which affirmed his conviction. The New M exico

Supreme Court denied his petition for a writ of certiorari. On M ay 7, 2004,


      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
M r. Kennedy filed an application for a writ of habeas corpus under 28 U.S.C.

§ 2254 in the United States District Court for the District of New M exico. In his

application M r. Kennedy alleged (1) that his conviction was supported by

insufficient evidence, and (2) that his trial counsel was constitutionally

ineffective. The magistrate judge’s “Proposed Findings and Recommended

Disposition” (Findings and Recommendation) rejected his claims as meritless.

On October 31, 2005, the district court adopted the magistrate judge’s findings

and denied M r. Kennedy’s application. The district court did not address whether

to grant M r. K ennedy a certificate of appealability (COA), see 28 U.S.C.

§ 2253(c)(1) (requiring a COA), w hich we deem a denial. See United States v.

Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000). M r. Kennedy now seeks a

COA from this court to appeal the district court’s decision. W e deny a COA and

dismiss the appeal.

      At trial the state presented testimony from Detective Jerry Belotti of the

Albuquerque Police Department that he had purchased a rock of crack cocaine

from M r. K ennedy for $20 as part of a “buy/bust” operation on M arch 18, 2002.

A small rock of cocaine— purportedly the drugs sold by M r. Kennedy to Detective

Belotti— was admitted into evidence over M r. Kennedy’s objection that a

discrepancy in the date in a notation on the evidence tag indicated a break in the

chain of custody.




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      M r. Kennedy alleges a due-process violation because the evidence at trial

was insufficient to support his conviction. He argues that the alleged discrepancy

in the date on the evidence tag indicates that there was no physical evidence in his

case and that the prosecution deliberately used false evidence and false testimony

to convict him. He also claims that his trial counsel was constitutionally

ineffective in failing to investigate and challenge this key evidence and for

insisting on pursuing an entrapment defense over M r. Kennedy’s objections. The

district court adopted the magistrate judge’s conclusions that the evidence was

more than sufficient to sustain M r. Kennedy’s conviction and that his trial

counsel’s cross-examination of the forensic chemist and objection to the proffered

physical evidence indicated an adequate investigation of the potential evidentiary

challenges.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

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      The A ntiterrorism and Effective D eath Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state court decision 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 determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that
      principle to the facts of the prisoner’s case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotations,

citations and brackets omitted). “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of a habeas petitioner’s

request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      The district court’s resolution of M r. Kennedy’s constitutional claims was

neither wrong nor debatable. The state presented evidence— particularly the



                                         -4-
testimony of Detective Belotti— sufficient for the jury to find M r. Kennedy guilty

of cocaine trafficking. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (in

reviewing a habeas attack on the sufficiency of evidence to support a conviction,

“the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt”). The state court’s

rejection of M r. Kennedy’s sufficiency-of-the-evidence argument was

undebatably not an unreasonable application of federal law.

      As for M r. Kennedy’s ineffectiveness claim, the magistrate judge’s

Findings and Recommendation cogently explains that M r. Kennedy has failed to

point to any deficiency of his attorney in investigating the case or challenging its

physical evidence. And in light of the evidence of guilt, counsel’s decision to

pursue an entrapment defense was clearly within the realm of acceptable strategy.

      W e DENY M r. K ennedy’s request for a COA and DISM ISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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