                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             FEB 7 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 CARL JACKSON,

       Petitioner-Appellant,
                                                         No. 04-3177
 v.                                              (D.C. No. 02-CV-3438-MLB)
                                                           (D. Kan.)
 DAVID R. MCKUNE, ATTORNEY
 GENERAL OF KANSAS,

       Respondents-Appellees.



        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.


      Carl Jackson, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition. For substantially the same reasons set forth by the district court in its

Order of April 30, 2004, we DENY Jackson’s request for a COA and DISMISS.

      Following a jury trial, Jackson was convicted of aggravated sexual battery

in Kansas state courts and sentenced to 272 months incarceration. During state

appellate proceedings, the Kansas Court of Appeals (“KCA”) affirmed his

conviction and the Kansas Supreme Court denied review. Jackson then brought a

state habeas petition under Kan. Stat. Ann. § 60-1507 alleging ineffective
assistance of appellate counsel in his direct appeal. The state district court

denied relief, the KCA affirmed, and the Kansas Supreme Court again denied

review.

       On December 23, 2002, Jackson filed the instant petition in federal district

court pursuant to § 2254, 1 raising five claims: (1) ineffective assistance of

appellate counsel; (2) insufficient evidence to support his conviction beyond a

reasonable doubt; (3) error in admitting certain prior crimes evidence; (4)

prosecutorial misconduct; and (5) error in granting an upward departure in

sentencing. Although Jackson states in his application for a certificate of

appealability that “[t]he district court held that two of the claims were

procedurally barred/defaulted and that the other three claims failed on the merits

. . . [and that he] disputes such decisions and hereby seeks a certificate of



   1
      Jackson’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Jackson to show “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. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Jackson a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

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appealability,” he specifically disclaims any challenge to the district court’s

determination on the two issues which were held to be procedurally defaulted.

Further, Jackson, in his brief and application, addresses only the issues considered

by the district court on the merits. Thus, we will consider only the ineffective

assistance of appellate counsel, insufficient evidence, and prosecutorial

misconduct claims.

      Under AEDPA, if a claim is adjudicated on the merits in state court, we

will grant habeas relief only if that 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” 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). After

careful review of Jackson’s application, the district court’s order denying relief,

and the material portions of the record on appeal, we conclude that Jackson’s

claims are without merit. Accordingly, Jackson has failed to make “a substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

      In response to Jackson’s allegations of ineffective assistance of appellate

counsel, insufficiency of the evidence, and prosecutorial misconduct, the district

court determined that the KCA decisions on these claims were neither

unreasonable determinations of facts nor unreasonable applications of the


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standards for determining ineffective assistance, sufficiency of the evidence, or

prosecutorial misconduct and denied habeas relief on these bases. We agree.

      The KCA evaluated Jackson’s claims of ineffective assistance of appellate

counsel in not contesting the admission of the prior crimes evidence as hearsay, in

addition to the claim presented on direct appeal which contested the propriety of

its admission under Kan. Stat. Ann. § 60-455. Under the ineffective assistance

standard announced in Strickland v. Washington, 466 U.S. 668 (1984), the KCA

found that Jackson had failed to establish both objective unreasonableness and

prejudice, specifically determining that it was not unreasonable for his counsel to

raise only the best legal arguments on appeal, and that the admission of the

hearsay portions of the prior crimes evidence was harmless. Such a determination

is not an unreasonable application of Strickland to the facts.

      As to Jackson’s insufficiency of the evidence claim, Jackson was convicted

of aggravated sexual battery under Kan. Stat. Ann. § 21-3518 which provides, in

relevant part, that “[a]ggravated sexual battery is the intentional touching of the

person of another who is 16 or more years of age and who does not consent

thereto, with the intent to arouse or satisfy the sexual desires of the offender . . .

[w]hen the victim is overcome by force or fear.” Jackson stipulated to every

element of the offense except that the victim was overcome by force or fear. As

outlined by the district court, the KCA evaluated Jackson’s claim that because


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there was conflicting evidence on whether the sixteen-year-old victim consented,

that “no rational trier of fact could have found proof of guilt beyond a reasonable

doubt.” See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (emphasis added).

Under AEDPA, the district court evaluated whether the KCA reasonably applied

the Jackson standard to the facts of this case. We agree with both the KCA and

district court that a rational trier of fact – on the basis of the undisputed facts of

age and size differences between Jackson and the 16-year old 86-pound victim,

the victim’s testimony that he feared Jackson would hurt him or his mother,

sleeping in the next room, and his testimony that Jackson had mumbled

threatening remarks prior to molesting him – could have found Jackson guilty of

aggravated sexual battery beyond a reasonable doubt.

      Finally, Jackson contends that prosecutorial comments likening him to a

“wild animal” preying on victims “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” We conclude that the KCA’s

opinion that these comments did not have a substantial effect on the outcome of

the trial, when viewed in light of the trial court’s sustaining the defense objection

to the “wild animal” comment coupled with an immediate curative instruction, is

reasonable under Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (holding

that where no specific Bill of Rights guarantees are implicated, prosecutorial

misconduct must have so infected the trial with unfairness as to make the


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resulting conviction a denial of due process). Also reasonable was the KCA’s

determination that the “preying” comments were a fair comment on the evidence.

      Because we determine that the KCA’s resolution of these three issues was     a

reasonable application of clearly established Federal law, based on a reasonable

determination of the facts in light of the evidence presented in the State court

proceeding, Jackson’s application for a COA is DENIED and the appeal is

DISMISSED.

                                               ENTERED FOR THE COURT

                                               Carlos F. Lucero
                                               Circuit Judge




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