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

                                   TENTH CIRCUIT                                 May 10, 2011

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
TODD DEAL,

       Petitioner - Appellant,

v.                                                            No. 10-3324
                                                    (D.C. No. 05:08-CV-03162-WEB)
SAM CLINE, Warden, Hutchinson                                   (D. Kan.)
Correctional Facility; STEPHEN SIX,
Attorney General, State of Kansas,

       Respondents - Appellees.



             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Todd Deal, a Kansas state prisoner, wants to appeal from the district court’s denial

of his 28 U.S.C. § 2254 habeas petition. His habeas petition was based upon myriad

claims of constitutional violations. The district court denied both his petition and a

Certificate of Appealability (COA). Because the district court’s decision is not debatable

or wrong, we deny his request for a COA.

                                   I.   BACKGROUND

       In early 1999, Deal was convicted of first degree premeditated murder and

sentenced to life imprisonment with eligibility for parole after 25 years. The Kansas
Supreme Court affirmed his conviction.1 See State v. Deal, 23 P.3d 840 (Kan. 2001).

Deal then applied for a state writ of habeas corpus pursuant to Kan. Stat. Ann. § 60-1507,

claiming ineffective assistance of counsel. The trial court denied his petition, the Kansas

Court of Appeals affirmed, and the Kansas Supreme Court denied review.2 See Deal v.

State, 110 P.3d 1053 (Kan. Ct. App. 2005).

       Deal then brought this federal habeas action claiming (in his words):

           1. Violation of the Fifth and Fourteenth Amendments resulting from the
              denial of his request for a mistrial after the State played a videotape for the
              jury in which it showed Deal refusing a polygraph examination when
              questioned by police;
           2. Violation of the Fifth and Fourteenth Amendments flowing from the denial
              of Deal’s request to play for the jury a videotaped interview made by police
              of the person Deal contended committed the murder;
           3. Violation of the Fifth and Fourteenth Amendments by allowing the
              introduction of overwhelmingly prejudicial and irrelevant evidence,
              specifically, a gruesome photograph of the victim;


       1
        The Kansas Supreme Court affirmed Deal’s conviction by a 4-3 decision. This
narrow affirmance resulted from the minority’s view that Deal deserved a new trial
because of the admission of evidence concerning “[Deal’s] refusal to take a lie detector
test.” Deal, 23 P.3d at 855. The majority, however, concluded Deal had “failed to show
substantial prejudice by the isolated reference to the polygraph examination.” Id. at 849.
       2
         Deal subsequently filed a motion to correct his sentence pursuant to Kan. Stat.
Ann. § 22-3504. The motion was denied by the trial court and affirmed by the Kansas
Supreme Court. See State v. Deal, 186 P.3d 735 (Kan. 2008). During the pendency of
the motion to correct his sentence, Deal filed a § 2254 habeas petition, which was
dismissed by the district court for being untimely. Deal v. McKune, No. 06-3053-SAC,
2006 WL 3497765 (D. Kan. Dec. 4, 2006). On appeal we reversed because the Kansas
Supreme Court had allowed Deal to docket, out of time, his appeal from the denial of his
motion to correct sentence; since that appeal was currently pending in state court, the
statute of limitations had not expired. See Deal v. McKune, 244 Fed. App’x 185 (10th
Cir. 2007). On remand, the district court dismissed Deal’s § 2254 petition without
prejudice. See Deal v. McKune, No. 06-3053, 2007 WL 4180392 (D. Kan. Nov. 21,
2007).

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            4. Violation of the Fifth and Fourteenth Amendments due to the refusal to
               instruct the jury on the crime of “aiding a felon” as a defense, as that was
               the only crime for which he could be found guilty based on the evidence
               adduced at trial;
            5. Violation of the Fourth, Fifth and Fourteenth Amendments due to the
               allowance of evidence at trial of Deal’s videotaped statement to police
               which was taken without the presence of counsel or the administration of
               Miranda3 warnings;
            6. Violation of the Fifth, Sixth and Fourteenth Amendments by allowing the
               State to introduce testimony – over a hearsay objection - from the victim’s
               father about statements the victim purportedly made to him weeks before
               her disappearance about an unrelated incident supposedly commented upon
               by Deal;
            7. Violation of the Fifth and Fourteenth Amendments by allowing the State to
               introduce testimony – over an objection based on K.S.A. § 60-455 (other
               prior bad acts) - from the victim’s father about statements the victim
               purportedly made to him weeks before her disappearance about an
               unrelated incident supposedly commented upon by Deal;
            8. Violation of the Fifth and Fourteenth Amendments by allowing the State to
               charge first degree murder with the additional element of “by suffocation,
               drowning and/or strangulation” but then not holding the State to its burden
               of proof on that element; and
            9. Ineffective assistance of trial counsel in violation of Deal’s Fifth, Sixth and
               Fourteenth Amendment rights.
(R. Vol. I at 14-17.) In a thorough and cogent decision, the district court evaluated each

claim and denied relief.

       In his application for COA to this Court, Deal raises five issues: 1) Violation of

the Confrontation Clause due to the admission of hearsay testimony, namely, statements

the deceased victim made to her father; 2) Violation of Due Process resulting from the

jury being shown a video of Deal refusing to take a polygraph test; 3) Violation of the

right against self-incrimination due to admission into evidence of videotaped statements


       3
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                             -3-
made by Deal in violation of his Miranda rights; 4) Violation of Due Process based on

the refusal to allow Deal to show the jury a police interrogation videotape of the person

Deal claims committed the murder; and 5) Ineffective assistance of counsel due to trial

counsel’s failure to properly advise Deal of his right to testify in his own defense.

                                    II.   DISCUSSION

       The parties are well aware of the facts and the district court’s analysis, neither of

which we repeat. A COA may be issued only upon “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Deal’s COA application amounts to

arguments made to, and correctly rejected by, several state and federal courts.

Nevertheless, we have carefully reviewed the district court’s thorough and cogent

analysis of the issues raised. Our study of the record and relevant law fully satisfies us

that reasonable jurists would not find the district court’s assessment of Deal’s

constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       The application for a COA is DENIED and this matter is DISMISSED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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