                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS                 April 24, 2008
                             FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                     Clerk of Court


    GORDON MARTIS,

                Petitioner-Appellant,

    v.                                                 No. 07-3185
                                                (D.C. No. 05-CV-3207-JAR)
    DAVID MCKUNE, Warden, Lansing                        (D. Kan.)
    Correctional Facility; STEPHEN N.
    SIX, * Attorney General of the State of
    Kansas,

                Respondents-Appellees.


                             ORDER AND JUDGMENT **


Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.



         A Kansas state-court jury convicted Gordon Martis of one count each of

first degree premeditated murder, second degree intentional murder, attempted


*
      Pursuant to Fed. R. App. P. 43(c)(2), Stephen N. Six is substituted for Phill
Kline as a respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
first degree murder, and attempted second degree murder. He was sentenced to

life imprisonment without the possibility of parole for forty years on the first

count and concurrent lesser sentences on the other counts. After the Kansas

Supreme Court affirmed his convictions, see State v. Martis, 83 P.3d 1216, 1239

(Kan. 2004), he filed a 28 U.S.C. § 2254 habeas corpus petition in the district

court, raising five constitutional claims. The district court denied relief in a

thorough and well-reasoned decision, and also denied his request for a certificate

of appealability (COA).

      Mr. Martis then sought a COA from this court. See 28 U.S.C. § 2253(c).

We granted his request in a prior order, limited to the question whether the state

trial court denied his Sixth Amendment right to confront prosecution witnesses by

precluding him from questioning those witnesses concerning the affect on their

testimony of criminal charges pending against them. We now affirm the district

court’s denial of Mr. Martis’s § 2254 petition on this issue and deny his request

for a COA on a second issue.

      Because the Kansas Supreme court considered and ruled on Mr. Martis’s

Sixth Amendment claim, we apply a highly-deferential standard of review to the

state court’s legal conclusions. Thus, he is entitled to relief only if the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). A state court’s decision is “contrary to”

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clearly established federal law if it applied “a rule that contradicts the governing

law set forth in Supreme Court cases,” or if it “confronts a set of facts that are

materially indistinguishable from a decision of the Supreme Court” but arrives at

a different result. Gonzales v. Tafoya, 515 F.3d 1097, 1109 (10th Cir. 2008)

(quotations and brackets omitted). “A state court decision involves an

‘unreasonable application’ of federal law if the state court identifies the correct

governing legal principle from Supreme Court decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id. (quotation and brackets

omitted).

      In order to qualify for relief under this standard, Mr. Martis must identify

Supreme Court precedent supporting his contention of a constitutional violation.

And “the state court decision must be diametrically different and mutually

opposed to the Supreme Court decision itself.” Id. (quotations omitted). Further,

it is insufficient for Mr. Martis to demonstrate that the state court’s decision was

incorrect; “the state court’s application of federal law must be objectively

unreasonable.” Id. Applying this standard, the district court held that the Kansas

Supreme Court’s factual distinction of Mr. Martis’s case from Davis v. Alaska,

415 U.S. 308 (1974), was not unreasonable or contrary to Supreme Court

precedent. The court also concluded that this case is distinguishable from

Delaware v. Van Arsdall, 475 U.S. 673 (1986).




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      Mr. Martis argues that the Kansas courts unreasonably applied

clearly-established federal constitutional law. He first asserts that the Kansas

Supreme Court relied primarily on state evidentiary rules in affirming the trial

court’s ruling, “glossing over the constitutional argument.” Aplt. Br. at 19. We

disagree. While the court did initially consider whether the proposed

cross-examination was admissible under state law, it then proceeded to examine

his constitutional claim. See Martis, 83 P.3d at 1228. Mr. Martis also contends

that he is entitled to relief under Supreme Court cases holding that

cross-examination of a witness for bias is a right protected by the Sixth

Amendment. But he fails to address the factual distinctions between his case and

the relevant Supreme Court precedent. Further, although he argues that the

Kansas Supreme Court’s ruling was wrong, he does not demonstrate that its

application of federal law was objectively unreasonable.

      We have carefully reviewed Mr. Martis’s submissions, as well as the

record. For substantially the reasons set forth in the district court’s Order dated

June 6, 2007, we conclude that he has failed to demonstrate that the state court’s

decision with respect to his Sixth Amendment claim was contrary to or an

unreasonable application of clearly-established federal law.

      Mr. Martis also seeks a COA on a second issue involving the trial court’s

exclusion of evidence. We conclude that he has failed to make “a substantial




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showing of the denial of a constitutional right.” § 2253(c)(2). We therefore deny

his request for a COA and dismiss that portion of his appeal.

      The district court’s denial of federal habeas corpus relief with respect to

Mr. Martis’s Sixth Amendment claim is AFFIRMED. His request for a COA on

his second claim for relief is DENIED and that portion of his appeal is

DISMISSED.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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