                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       November 29, 2005
                                    TENTH CIRCUIT
                                                                          Clerk of Court

 LAVAUGHN E. LEWIS,

          Petitioner - Appellant,
                                                       No. 05-3096
 v.                                             (D.C. No. 04-CV-3019-JWL)
                                                         (D. Kan.)
 RAY ROBERTS, Warden, El Dorado
 Correctional Facility; PHIL KLINE,
 Attorney General of the State of
 Kansas,

          Respondents - Appellees.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and, TYMKOVICH, Circuit Judges. *


      Petitioner-Appellant LaVaughn E. Lewis, a state inmate appearing through

counsel, seeks a certificate of appealability (“COA”) so that he may appeal the

district court’s denial of his 28 U.S.C. § 2254 petition for habeas relief. Fed. R.

App. P. 22(b)(1); 10th Cir. R. 22.1; Aplt. Br. at 42. Because we determine that he

has not made “a substantial showing of the denial of a constitutional right,” 28


      *
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny

his request for a COA and dismiss his appeal.

      Mr. Lewis was convicted by a jury in Kansas state court of aggravated

indecent liberties with a child in violation of Kan. Stat. Ann. § 21-3504 and was

sentenced to 180 months imprisonment. The conviction stemmed from a police

report in August 1996, in which Mr. Lewis’ then eight-year-old niece told the

police that Mr. Lewis had rubbed her vaginal area three times while they were

swimming together several days prior. On direct appeal, the Kansas Court of

Appeals affirmed, Orig. R. II at 141-43, and the Kansas Supreme Court denied

Mr. Lewis’ petition for review.

      In September 2001, Mr. Lewis filed a habeas corpus petition in Kansas

state district court pursuant to Kan. Stat. Ann. § 60-1507. Mr. Lewis argued that

he had been denied effective assistance of counsel because his trial counsel,

court-appointed Michael D. Reed, failed (1) to consult with, or procure testimony

from, an expert on child interviewing techniques, Orig. R. I at 32-35, and (2) to

contact or interview witnesses relevant to Mr. Lewis’ case, Orig. R. I at 26-32.

At the same time, Mr. Lewis also filed a motion for a new trial pursuant to Kan.

Stat. Ann. § 22-3501. He argued that the victim’s alleged recantation of her trial

testimony constituted newly discovered evidence entitling him to a new trial.

Orig. R. I at 35-37. Upon Mr. Lewis’ request, the state district court consolidated


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his habeas petition and motion for a new trial. The state district court denied both

grounds for relief after a full evidentiary hearing. See Orig. R. I at 114-21; Orig.

R. II at 170-72. The Kansas Court of Appeals considered Mr. Lewis’ claims for

relief and affirmed. See Lewis v. State, 111 P.3d 636 (Kan. Ct. App. 2003). 2 The

Kansas Supreme Court denied Mr. Lewis’ petition for review.

      Mr. Lewis then filed his federal habeas petition pursuant to 28 U.S.C. §

2254. In it, Mr. Lewis raised both ineffective assistance claims. He also

challenged the factual determinations made by the state court in concluding that

his trial counsel’s performance did not constitute ineffective assistance. In

addition, he argued that the cumulative effect of his trial counsel’s errors

rendered his assistance constitutionally ineffective.

      The district court carefully considered each of Mr. Lewis’ claims but

denied relief as to all of them. R. Doc. 22. In order for this court to grant a

COA, Mr. Lewis must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court

has rejected a habeas petitioner’s constitutional claims on the merits, the

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



      2
        Previously filed as an unpublished opinion, the Supreme Court of Kansas
granted a motion to publish pursuant to Rule 7.04 (2004 Kan. Ct. R. Annot. 47).
The published version was filed with the Clerk of the Appellate Courts on April
29, 2005.

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assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at

484.

       Citing Jackson v. Ray, 390 F.3d 1254, 1259 (10th Cir. 2004), the district

court recognized that the claims asserted by Mr. Lewis were presented to the

Kansas Court of Appeals and denied by that court. As such, the district court

could not properly issue a writ of habeas corpus unless it found that the state

court 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 at the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Jackson, 390 F.3d at 1259. Federal

courts evaluating § 2254 petitions must presume that state court factual findings

are correct. See 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S.

322, 340 (2003). The habeas petitioner bears the burden of rebutting that

presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see

also, e.g., Darks v. Mullin, 327 F.3d 1001, 1007 (10th Cir.), cert denied, 124 S.

Ct. 433 (2003). It is against these standards that the district court’s denial of Mr.

Lewis’ petition must be assessed.

       Having carefully reviewed Mr. Lewis’ arguments, the Kansas Court of

Appeals’ opinion, the district court’s thorough order rejecting the claims, and the


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record on appeal, we conclude that reasonable jurists would not find the district

court’s resolution of the issues raised by Mr. Lewis fairly debatable. We

conclude, therefore, that Mr. Lewis has not made “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 483-

84.

      Accordingly, we DENY a COA and DISMISS this appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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