                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          DEC 3 2002
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

LARRY R. BROWN-BEY,

            Petitioner - Appellant,

v.                                                      No. 02-3136
                                                  D.C. No. 00-CV-3306-DES
MICHAEL A. NELSON; CARLA                                 (D. Kansas)
STOVALL, Attorney General of
Kansas,

            Respondents - Appellees.


LARRY R. BROWN-BEY,

            Petitioner - Appellant,

v.
                                                        No. 02-3164
MICHAEL A. NELSON; CARLA                          D.C. No. 00-CV-3230-DES
STOVALL, Attorney General of                             (D. Kansas)
Kansas,

            Respondents - Appellees.


                          ORDER AND JUDGMENT            *




*
  These cases are unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.



      Larry R. Brown-Bey was convicted, in two separate cases, of kidnapping,

criminal threat, aggravated assault, and the sale of cocaine. After his convictions

were affirmed on direct appeal, he unsuccessfully sought habeas relief in the

district court. He now challenges certain rulings by the district court and

underlying rulings by the state appellate court and state trial court in connection

with the district court’s denial of his habeas applications, filed pursuant to

28 U.S.C. § 2254. The district court declined to grant Brown-Bey certificates

of appealability (COA) to proceed on appeal, as required by provisions of the

Anti-Terrorism and Effective Death Penalty Act. Brown-Bey moves for COA on

both appeals.

      In appeal No. 02-3136, Brown-Bey argues: (1) insufficient evidence on the

kidnapping charge, (2) prosecutorial misconduct in closing argument and

application of an improper harmless error standard on habeas review of this issue,

(3) prosecutorial interference with witnesses, and (4) a due process violation

based on newly discovered evidence. In appeal No. 02-3164, he asserts:

(1) a due process violation resulting from the denial of a request for investigative

and expert services, and (2) application of the wrong harmless error standard by

the district court. After careful consideration of both appellate records, which


                                         -2-
include complete state court trial records and transcripts, along with Brown-Bey’s

briefs and motions for COA, we conclude that Brown-Bey has not demonstrated

entitlement to COA; that is, he has not “made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2).

      We comment briefly on Brown-Bey’s harmless error argument in appeal

No. 02-3136, because the district court did not specify what standard it applied in

denying habeas relief on this issue. Brown-Bey contends, correctly, that the

proper harmless standard on habeas review comes from         Kotteakos v. United

States , 328 U.S. 750, 776 (1946). This was made clear by the Supreme Court in

Brecht v. Abrahamson , 507 U.S. 619, 637–38 (1993), where it rejected use of the

“beyond a reasonable doubt” standard from         Chapman v. California , 386 U.S. 18,

24 (1967), in the habeas context. In the underlying criminal case, the state

appellate court, on direct review of Brown-Bey’s conviction, properly applied the

Chapman “beyond a reasonable doubt” standard to Brown-Bey’s prosecutorial

misconduct issue. However, on habeas review, the district court did not expressly

apply the Kotteakos/Brecht standard in reaching its conclusion that the state

appellate court’s ruling was not an unreasonable application of the law or facts.

See 28 U.S.C. § 2254(d). Brown-Bey argues here that application of the proper

standard would entitle him to habeas relief. However, as this court has recently

noted, the Kotteakos/Brecht standard is a less demanding standard than the


                                            -3-
Chapman standard. Herrera v. Lemaster , 301 F.3d 1192, 1197 (10th Cir. 2002).

Therefore, Brown-Bey has nothing to gain by its application to his case.

      Brown-Bey’s requests for COA to proceed on appeal are denied, and these

appeals are dismissed.   The mandate shall issue forthwith.



                                                    ENTERED FOR THE COURT



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -4-
