                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         NOV 17 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 RANDALL C. WYATT,

              Petitioner - Appellant,                   No. 04-3066
       v.                                       (D.C. No. 02-CV-3348-GTV)
 L. E. BRUCE and ATTORNEY                                 (D. Kan.)
 GENERAL OF KANSAS,

              Respondents - Appellees.


                                        ORDER


Before BRISCOE , McKAY , and HARTZ , Circuit Judges.



      Applicant Randall C. Wyatt, appearing pro se, was convicted of rape and

aggravated criminal sodomy in Kansas state court and is currently serving a

sentence of 154 months in a Kansas prison. The Kansas Court of Appeals

affirmed his convictions, and the state Supreme Court denied review. Applicant

next sought post-conviction relief in Kansas state court. The district court denied

relief and the Court of Appeals affirmed on the ground that he had not raised his

contentions on direct appeal. Applicant then filed an application under 28 U.S.C.

§ 2254 in the United States District Court for the District of Kansas. The district

court, concluding that the Respondents waived any procedural-default defense,
reviewed Applicant’s claims on the merits and denied the application. Applicant

now seeks a certificate of appealability (COA) so that he may appeal the district

court’s decision. See 28 U.S.C. § 2253(c)(2). We deny the request for a COA,

and dismiss the appeal.

      On May 14, 1997, the victim, KK, was suspended from work. She called

Applicant, a friend of 12 years, to go out for a drink. They spent the evening

together, during which he sexually assaulted her. Applicant was arrested, given

Miranda warnings, and made a statement to the police indicating that he had made

love to the victim but had not raped or sodomized her.

      In his § 2254 application, Applicant argues that the state withheld

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

when it denied his attorney’s request to provide serological evidence for

independent testing. He also claims that his Sixth Amendment right to effective

assistance of counsel was violated in six respects: (1) his counsel improperly

failed to have serological evidence independently tested; (2) his attorney

improperly failed to have independent tests conducted on the knife he allegedly

used during the assault; (3) his attorney failed to move for a mistrial on the

grounds that a member of the jury knew one of the state’s witnesses and that the

victim tampered with a potential juror on the day of voir dire; (4) his counsel

should have objected to the taking of blood and saliva samples without a warrant


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or court order; (5) his attorney should have retained a medical doctor to review

the examination of the victim by a nurse; and (6) his attorney improperly failed to

object to the admission of the notes of a detective who did not testify at trial.

Finally, Applicant argues that the admission of the detective’s notes violated his

right to confront witnesses.

      The district court denied habeas relief. With regard to the Brady claim, the

court noted that Applicant would have to show that the evidence allegedly

suppressed was material, meaning that there is a reasonable probability that the

result of the proceeding would have been different had the serological evidence

been disclosed. The court concluded that this standard was not satisfied because

“[Applicant’s] defense at trial . . . did not focus on the identity of the rapist, but

on the consensual nature of the sexual intercourse.” Dist. Ct. Order at 7.

      The court also concluded that the Applicant had failed to prove with respect

to any of his six ineffective-assistance claims “that counsel’s performance was so

prejudicial to him that there [was] a ‘reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Id. at 8 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

      With respect to claim 1, the court ruled that Applicant’s counsel was not

ineffective for failing to obtain independent testing for serological evidence.

Applicant asserts that had he known that the state’s testing was inconclusive, he


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may have pursued a defense denying that he had sexual intercourse with KK. But

there was apparently no evidence presented at trial that the physical evidence

matched his DNA. Moreover, from the time of his arrest, including at trial,

Applicant admitted having had intercourse with KK. Thus, the court concluded

that Applicant was not prejudiced by counsel’s decision not to seek independent

testing of the serological evidence.

      On claim 2, the court concluded that Applicant’s attorney did not provide

ineffective assistance when he did not have independent tests conducted on

fingerprints found on a knife admitted into evidence. Cross-examination of the

fingerprint examiner established that the prints were of poor quality and did not

match Applicant’s fingerprints. The district court ruled that the decision to rely

on cross-examination was not objectively unreasonable and counsel’s

performance was not deficient.

      Applicant’s claim 3 is that his counsel was ineffective for failing to move

for a mistrial based on two separate concerns arising from a juror and a potential

juror. First, Applicant claimed that “the jury was stacked” against him because a

juror personally knew one of the prosecution witnesses. He asserted that this

circumstance warranted a mistrial or the suppression of the witness’s testimony,

but that his counsel failed to object. The federal district court noted that one

juror, Mr. Elrod, stated during voir dire that he remembered Twila Flowers, a


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sexual-assault nurse examiner and potential witness, from a class he taught ten

years earlier. The class did not involve anything related to the witness’s training

as a sexual-assault nurse. In addition, Mr. Elrod said that he could be as fair as

anyone else with respect to Ms. Flower’s testimony.

      The second part of Applicant’s claim 3 relates to his counsel’s failure to

move for a mistrial when it became apparent that a potential juror, Mr. Kraft,

worked in the same building as KK and had engaged in a conversation with her

the morning of voir dire. In federal district court he suggested that the

conversation constituted tampering and prejudiced the jury against him. The

district court denied relief, holding that Applicant’s argument lacked merit

because Mr. Kraft did not become a jury member. Applicant did not point to any

evidence that Mr. Kraft influenced any other juror. On appeal he now argues that

his counsel improperly failed to move for a mistrial when the trial court

improperly removed Mr. Kraft for cause. It appears from the record on appeal

that Applicant did not raise this argument to the district court. As a general rule

we do not consider an issue not raised below. In re Walker, 959 F.2d 894, 896

(10th Cir. 1992). In any event, Applicant’s argument is without merit, given that

Mr. Kraft indicated during voir dire that he would be affected by his acquaintance

with the victim and his desire not to make her uncomfortable.

      As for claim 4, relating to counsel’s failure to object to blood and saliva


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samples taken from him without a warrant or court order, the court assumed that

the objection related to the trial judge’s post-conviction order directing Applicant

to submit samples of blood and saliva to the Kansas Bureau of Investigation

(KBI). Applicant contends, however, that his complaint concerns a pretrial order

to submit blood and saliva samples for investigative purposes. Regardless, no

such blood or saliva specimens led to adverse evidence at trial; their utility

would have been limited to establishing identity, which was not at issue. Thus,

there was no prejudice.

      Applicant’s claim 5 is that his attorney provided ineffective assistance in

failing to retain a medical doctor to review the examination performed by the

rape-kit nurse. The district court noted that counsel chose to attack the nurse’s

testimony through cross-examination rather than with a medical expert. The court

concluded that “counsel’s decision not to obtain an independent medical doctor

was a reasonable decision regarding trial strategy.” Dist. Ct. Order at 12. The

court also held that Applicant had not established that he was prejudiced by the

alleged deficient performance because he “fail[ed] to demonstrate how a medical

doctor’s testimony would have raised a reasonable probability that the outcome of

the trial would have been different.” Id. at 13.

      Applicant’s final ineffective-assistance claim and his confrontation claim

relate to the admission of a detective’s notes at trial. Applicant complains that his


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counsel failed to make a hearsay objection when the notes were admitted into

evidence. The notes describe the investigator’s interview with the victim at a

hospital. Defense counsel wanted to call the detective as a witness to impeach the

victim’s trial testimony. Because the detective was unavailable for trial, defense

counsel and the state stipulated to the admission of the notes. When defense

counsel stipulated, he indicated that the notes “would be sufficient for [his]

purposes.” Id. at 14. The district court held that counsel’s stipulation to the

admission of the notes amounted to a waiver of Applicant’s confrontation rights.

It further held that counsel’s performance was not deficient because the decision

to stipulate to the admission of the detective’s notes as an alternative to a

continuance was a matter of trial strategy. In addition, the court held that

Applicant was not prejudiced by the alleged error because it was “not reasonably

probable that the substance of [the detective’s] live testimony could have changed

the outcome of [Applicant’s] trial.” Id. at 15-16.

      “A certificate of appealability may issue . . . only if the applicant has made

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

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,


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529 U.S. 473, 484 (2000). We review the district court’s conclusions of law de

novo and its findings of fact for clear error. Id.; cf. LaFevers v. Gibson, 182 F.3d

705 (10th Cir. 1999).

      We recognize that in determining whether to issue a COA, a “full

consideration of the factual or legal bases adduced in support of the claims” is not

required, and indeed, is not permitted under 28 U.S.C. § 2253. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Instead, the decision must be based on “an

overview of the claims in the habeas petition and a general assessment of their

merits.” Id.

      We conclude that jurists of reason would not debate whether the district

court properly denied the application. For substantially the same reasons set forth

in the district court’s January 29, 2004, Memorandum and Order, we DENY the

COA and DISMISS the appeal. We also DENY Applicant’s motion to proceed in

forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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