                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                            TENTH CIRCUIT                     September 14, 2016

                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court

 ARTHUR BOWLES,

      Petitioner - Appellant,                      No. 16-3237
 v.                                      (D.C. No. 5:15-CV-03049-JTM)
 STATE OF KANSAS; ATTORNEY                          (D. Kan.)
 GENERAL OF KANSAS,

      Respondents - Appellees.



      ORDER DENYING A CERTIFICATE OF APPEALABILITY
               AND DISMISSING THE APPEAL


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.



      Mr. Arthur Bowles was convicted in state court on charges of

attempted aggravated criminal sodomy, aggravated indecent solicitation,

and lewd and lascivious behavior. He unsuccessfully sought a writ of

habeas corpus in federal district court. To appeal, Mr. Bowles requests a

certificate of appealability. We deny this request and dismiss the appeal.

I.    Standard for a Certificate of Appealability

      To obtain a certificate of appealability, Mr. Bowles must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012). Mr. Bowles meets this standard only if “jurists of

reason could disagree with the district court’s resolution of his

constitutional claims or . . . jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

      The Court applies this standard in light of Mr. Bowles’s burden to

justify habeas relief. This burden is steep when the state appeals court has

rejected his claims on the merits. A federal district court can grant habeas

relief in these circumstances only if the petitioner 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) (2012).

II.   Mr. Bowles’s Arguments for a Certificate of Appealability

      Because Mr. Bowles is pro se, we liberally construe his application

for a certification of appealability. See Hall v. Scott, 292 F.3d 1264, 1266

(10th Cir. 2002) (“Because Hall has filed his application for a COA pro se,

we construe his petition liberally.”). Mr. Bowles seeks a certificate of

appealability on his claims of (1) deprivation of due process based on a

suggestive photo line-up, (2) deprivation of due process based on denial of


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expert assistance at trial, (3) ineffective assistance of counsel, and (4)

errors in sentencing. Mr. Bowles also asserts actual innocence and

insufficiency of evidence of guilt. Because reasonable jurists could not

debate the district court’s denial of habeas relief, the Court declines to

issue a certificate of appealability.

      A.    Suggestive Photo Lineup

      Mr. Bowles alleges denial of due process from the use of an unduly

suggestive photo line-up. The Kansas Court of Appeals declined to address

the issue, holding that Bowles had failed to preserve the issue. State v.

Bowles, No. 96,107, 2007 WL 2239255, at *2 (Kan. Ct. App. Aug. 3,

2007). The district court properly treated this holding as an independent

and adequate state procedural ground. Thus, the district court could not

grant habeas relief unless Mr. Bowles demonstrated (1) cause for the

default and prejudice or (2) a fundamental miscarriage of justice from

failure to consider the claim. Coleman v. Thompson, 501 U.S. 722, 750

(1991).

      Mr. Bowles alleges cause based on ineffective assistance of counsel.

For this allegation, Mr. Bowles must show both that his attorney’s

performance was deficient and prejudicial. Strickland v. Washington, 466

U.S. 668, 687-88 (1984). The state appeals court held that Mr. Bowles had

failed to demonstrate ineffectiveness of counsel.



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      The federal district court agreed and concluded that Mr. Bowles had

not shown cause for the procedural default. This conclusion was not

reasonably debatable. As a result, we decline to issue a certificate of

appealability on the issue involving use of an unduly suggestive lineup.

      B.    Expert Assistance

      Mr. Bowles alleges a deprivation of due process from the denial of

expert assistance at trial. The state appeals court concluded that Mr.

Bowles had procedurally defaulted on this claim.

      Again, Mr. Bowles alleges ineffective assistance of counsel as cause

for the default. The state appeals court rejected this argument, and the

federal district court upheld this analysis as a reasonable application of

clearly established federal law. This analysis is not reasonably debatable.

Thus, we decline to issue a certificate of appealability on this issue.

      C.    Ineffective Assistance of Counsel

      Mr. Bowles also alleges ineffective assistance of counsel. The

federal district court rejected the allegation, holding that the state appeals

court reasonably applied Supreme Court precedent. This holding is not

reasonably debatable. Thus, we decline to issue a certificate of

appealability on this issue.

      D.    Sentencing Errors

      Mr. Bowles challenges the sentence, claiming that the state court

failed to obtain required jury findings and imposed excessive punishments

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for multiple offenses involving the same conduct. The federal district court

held that these claims are procedurally barred. In our view, this holding is

not reasonably debatable. As a result, we decline to issue a certificate of

appealability on this issue.

       E.   Sufficiency of Evidence and Actual Innocence

       Mr. Bowles alleges (1) insufficiency of the evidence on guilt and (2)

actual innocence. The district court concluded that Mr. Bowles had failed

to satisfy his burden under Supreme Court precedent. This conclusion was

not reasonably debatable. As a result, we decline Mr. Bowles’s request for

a certificate of appealability on the claims of insufficient evidence and

actual innocence.

III.   Disposition

       We deny Mr. Bowles’s request for a certificate of appealability and

dismiss the appeal.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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