                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                              December 12, 2006

                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court



 DERW IN STEW AR T,

          Petitioner-A ppellant.

 v.                                                       No. 06-3185
                                                  (D.C. No. 05-CV-3238-W EB)
 RAY ROBERTS, W arden, El Dorado                            (Kansas)
 Correctional Facility, PHIL KLINE,
 Attorney General of Kansas,

          Responents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      Derwin Stewart, a state prisoner appearing pro se 1 , seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition for w rit

of habeas corpus under 28 U.S.C. § 2254. 2 Exercising jurisdiction under 28



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
       W e liberally construe M r. Stewart’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
          The district court denied M r. Stewart’s request for a COA.
U.S.C. § 2253(c)(1), we see no basis for appeal and deny his application for a

COA.

       In 1997, M r. Stewart was convicted in Kansas state court of reckless second

degree murder and aggravated assault and was sentenced to 166 months

imprisonment. He appealed to the Kansas Court of Appeals and the Kansas

Supreme Court without success. He subsequently collaterally challenged his

conviction in state court, was denied relief, and appealed unsuccessfully. M r.

Stew art then sought relief in federal court, filing an extensive petition for a writ

of habeas corpus. In a thorough opinion, the district court dismissed numerous

claims on procedural grounds for M r. Stewart’s failure to exhaust in state court

and dismissed several claims after consideration on their merits in light of

AEDPA deference. Included among those claims dismissed on the merits are

alleged constitutional violations stemming from (1) M r. Stewart’s absence during

a jury viewing of the crime scene; (2) a failure of the trial court to issue jury

instructions discussing a lesser included offense; and (3) his counsel’s alleged

ineffectiveness for allowing a tape containing incriminating statements to be

played to the jury. In support of his present application to this court, M r. Stewart

asserts ineffective assistance of counsel, a denial of due process rights, and a

denial of his constitutional right to be present during the jury’s viewing of the

crime scene.

       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

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habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).

Before he may appeal, he first must obtain a COA. Otherwise the court of

appeals is without jurisdiction. See id. at 336. A COA will issue only if

petitioner makes “a substantial showing of the denial of a constitutional right.”

Slack v. M cDaniel, 529 U.S. 473, 483 (2000) To do so, petitioner must show

“that reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Id. (citations and internal quotation

marks omitted).

      In determining w hether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of A EDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id. W here

petitioner’s federal habeas claims were adjudicated on the merits, we will grant an

application for COA “only where the state court decision was ‘contrary to, or

involved an unreasonable application of , clearly established Federal law, as

determined by the Supreme Court . . .’ 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).” Dockins v. Hines, 374 F.3d 935, 936-37

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(10th Cir. 2004). W here the district court dismissed petitioner’s claims on

procedural grounds, “a COA should issue when [petitioner] shows . . . that jurists

of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at

484.

       Upon review of the entire record, we conclude the claims labeled

procedurally barred by the district court were indeed not raised in prior state court

proceedings and the procedural exhaustion ruling is thus not debatable. Two of

M r. Stewart’s claims decided on the merits, namely, failure to provide jury

instructions and exclusion from the jury view ing of a crime scene, are directly

contradicted by controlling case law. See Snyder v. M assachusetts, 291 U.S. 97

(1934), overruled on other grounds by M alloy v. Hogan, 378 U.S. 1, 17-18 (1964)

(holding no constitutional right to be present at a jury viewing of the crime

scene); Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“The Supreme

Court has never recognized a federal constitutional right to a lesser included

offense instruction in non-capital cases.”). M r. Stew art’s ineffectiveness claim is

undermined by a statement he made during an extensive colloquy with the state

trial judge that the taped testimony was presented because it “was in his best

interests.” Rec., vol. VI at 269. The district court’s additional analysis of M r.

Stewart’s ineffectiveness claim is sound, and the court’s resulting denial is not

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debatable. Nor is its determination that the evidence was sufficient to support

M r. Stew art’s conviction. Accordingly, we conclude that reasonable jurists w ould

not disagree with the district court’s dismissal.

      Because M r. Stewart has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his request for a COA.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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