                                                                          F IL E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          May 26, 2006
                                T E N T H C IR C U IT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court



JEFFREY LYN N SCO TT,

       Petitioner-A ppellant,
                                                         No. 05-3424
v.
                                                     (District of K ansas)
                                                 (D.C. No. 04-CV-3360-KHV)
DA VID R . M cKU NE; ATTO RN EY
GEN ERAL O F KANSAS,

       Respondents-Appellees.




                                      ORDER


Before M U R PH Y , SE Y M O U R and M cC O N N E L L , Circuit Judges.


      Proceeding pro se, Jeffrey L. Scott seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Scott has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dism isses this appeal. Id. § 2253(c)(2).
      A Kansas jury convicted Scott of one count of first degree murder, in

violation of Kan. Stat. Ann. § 21-3401(a). Scott appealed his conviction, raising

the following five arguments: (1) the evidence was insufficient to show

premeditation, (2) the premeditation instruction was improper, (3) the trial court

erroneously responded to a jury question outside his presence, (4) the prosecutor’s

statements during closing argument were improper, and (5) the self-defense

instruction was improper. In addition to the five issues raised in his counseled

brief, Scott filed a pro se supplemental brief raising issues related to the

introduction of a pretrial statement he made to police. The Supreme Court of

Kansas considered all the arguments but affirmed Scott’s conviction. State v.

Scott, 21 P.3d 516 (K an. 2001).

      Scott then filed a motion for post-conviction relief pursuant to Kan. Stat.

Ann. § 60-1507. In this motion, Scott raised several claims that his trial attorney

was constitutionally ineffective. Scott also asserted the trial court erred by failing

to hold a hearing on the voluntariness of his pretrial statement. See Jackson v.

Denno, 378 U.S. 368 (1964). Counsel was appointed by the K ansas district court

to represent Scott in the post-conviction proceeding. After a bench trial, the post-

conviction motion was denied. The Kansas Court of Appeals affirmed the denial.

Scott v. State, 88 P.3d 807 (K an. App. 2004) (unpublished disposition).




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      Scott filed the instant § 2254 habeas petition on August 7, 2002. In his

petition, Scott raised all the issues he presented in his direct appeal and in his

state motion for post-conviction relief and also included a cumulative error claim.

Scott also asserted the K ansas district court improperly denied him an evidentiary

hearing on his ineffective assistance claims and he raised several additional

claims based on alleged errors of state law. The district court addressed each of

Scott’s claims in turn. The court concluded that, to the extent Scott’s claims

involved only allegations of state law error, the claims were not cognizable in a

federal habeas corpus proceeding. See Estelle v. M cGuire, 502 U.S. 62, 67-68

(1991). However, to the extent those claims also implicated Scott’s constitutional

rights, the court analyzed their merits and concluded Scott was not entitled to

relief because he failed to demonstrate his trial was rendered fundamentally

unfair. See D onnelly v. DeChristoforo, 416 U.S. 637, 642-48 (1974); Duckett v.

M ullin, 306 F.3d 982, 999 (10th Cir. 2002). The district court also reviewed the

constitutional claims that were previously adjudicated by the Kansas state courts.

Applying the standard set forth in the Antiterrorism and Effective Death Penalty

Act, the district court concluded that the state courts’ adjudication of those claims

was not contrary to, nor an unreasonable application of clearly established federal

law. 28 U.S.C. § 2254(d). The court addressed two of Scott’s ineffective

assistance claims on the merits, but concluded he was not entitled to habeas relief



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on those claims because he had not established prejudice under the second prong

of the test set out in Strickland v. Washington. 466 U .S. 668, 687 (1984). It also

addressed the merits of Scott’s claim that the trial court erroneously failed to hold

a Denno hearing to determine whether his statement to police was voluntary but

denied relief on that claim. Finally, the district court concluded Scott

procedurally defaulted several of his claims because he did not raise them in state

court. See Coleman v. Thom pson, 501 U.S. 722, 735 n.1 (1991). The court did

not review of the merits of the defaulted claims because it concluded Scott failed

to show cause for the default and actual prejudice or that the failure to review his

claims would result in a fundamental miscarriage of justice. See id. at 750.

      To be entitled to a COA, Scott must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate w hether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Scott has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Scott need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove



                                          -4-
something more than the absence of frivolity or the existence of mere good faith.”

Id. (quotations omitted).

      This court has reviewed Scott’s application for a COA and appellate brief, 1

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in M iller-El and concludes that Scott is

not entitled to a COA. The district court’s resolution of Scott’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, Scott has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §

2253(c)(2).

      This court denies Scott’s request for a COA and dism isses this appeal.

                                        ENTERED FOR THE COURT


                                        M ichael R. M urphy
                                        Circuit Judge




      1
          Scott’s M otion for Leave to File Extended Brief is granted.

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