                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 12 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    OLANDER J. HICKLES,

                Petitioner-Appellant,

    v.                                                   No. 99-3221
                                                    (D.C. No. 97-CV-3485)
    DAVID MCKUNE, Warden, Lansing                          (D. Kan.)
    Correctional Facility; CARLA
    STOVALL, Attorney General of the
    State of Kansas,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. 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.
      Petitioner-appellant Olander J. Hickles, a state prisoner appearing pro se,

appeals the district court’s decision denying his petition for a writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254, and also denying his request for a

certificate of appealability. Hickles challenges his first-degree murder

conviction, alleging that the state trial court admitted into evidence a confession

obtained in violation of the Fifth Amendment and the holding of    Miranda v.

Arizona , 384 U.S. 436, 478-79 (1966). We deny a certificate of appealability

(COA) and dismiss the appeal.



                                  BACKGROUND

        While visiting at another individual’s house with his girlfriend and the

estranged wife of the victim, Earl Whetstone, Hickles made threats on

Whetstone’s life. Shortly afterwards, Whetstone appeared at the house. Hickles

and Whetstone traded derogatory comments and Hickles again threatened to kill

Whetstone. A fight ensued, first inside and then outside of the house. During the

struggle, Hickles drew his knife. Whetstone had no weapon.

        Hickles’ girlfriend testified that she saw him thrust the knife three times

at Whetstone, and that she was standing close enough to see blood on the knife

and to be spattered by Whetstone’s blood. R., Trial Tr. Vol. II, at 305-10. In

addition, she testified that, with Whetstone lying on the ground in a pool of blood,


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Hickles kicked him hard in the chest and head.       Id. at 312. Whetstone’s wife also

testified that she witnessed the kicking.    Id. at 270-73. Hickles then left the scene

with his girlfriend, telling her that he had stabbed Whetstone six times.    Id. at

318. Whetstone, who had sustained eight stab wounds, three cuts, and blunt

trauma injuries to the facial area, died within minutes.

       Hickles was taken into custody and advised of his       Miranda rights. In

response to questions of the law enforcement officers, Hickles stated that he did

not have anything to say. Hickles, however, did not remain silent. He asked

questions of the officers and, in turn, the officers continued to question him.

Fifteen to thirty minutes into the interview, Hickles stated that his knife had

fallen to the ground during the fight, that he and Whetstone had struggled for

possession of it, and that somehow Whetstone got stabbed. At the jail, Hickles

was heard to say that “[i]t was either him or me” and that “I’m glad it was him

instead of me.” R., Trial Tr. Vol. IV, at 774.

       Hickles was charged with first-degree murder. After holding a hearing to

determine the voluntariness of the statement Hickles made to the officers, the trial

court admitted the statement into evidence. At trial, Hickles’ only theory of

defense was that the eyewitnesses were intoxicated and unreliable, particularly

because the incident was “over in the blink of an eye.” R., Tr. of Closing

Argument, at 18-19. This theory was not inconsistent with Hickles’ statement.


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       The jury returned a guilty verdict and Hickles appealed to the Kansas

Supreme Court. Among other claims of error, Hickles alleged that the statement

was inadmissible because it had been obtained in violation of his Fifth

Amendment right to remain silent. According to Hickles, his initial response to

the officers constituted an affirmative assertion of his right to remain silent and,

therefore, all questioning should have ceased. The Kansas Supreme Court

disagreed, determining that “[w]hen the totality of the circumstances is

considered, . . . there was substantial competent evidence to support the trial

court’s finding of voluntariness and admissibility of Hickles’ statement.”    State v.

Hickles , 929 P.2d 141, 149 (Kan. 1996).

       Hickles then filed his habeas petition in federal district court. The district

court did not conduct a Miranda analysis. Instead, it carefully reviewed the

evidence and determined that “[e]ven . . . assum[ing] the admission of the

confession was improper, the other evidence presented against the petitioner at

trial clearly shows that such an error was harmless.” R., Pleadings, No. 14, at 7.

The district court denied the petition and this appeal followed.



                                         ANALYSIS

       No appeal can be taken from the final order in a habeas corpus proceeding

unless the petitioner is issued a certificate of appealability.   See 28 U.S.C.


                                               -4-
§ 2253(c). The Supreme Court has recently addressed the requirements for

obtaining a COA under § 2253(c).

              [A] habeas prisoner must make a substantial showing of the
       denial of a constitutional right, a demonstration that . . . includes
       showing that reasonable jurists could debate whether (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.”

Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000) (quoting           Barefoot v. Estelle ,

463 U.S. 880, 893, & n.4 (1983) (further quotations omitted)). Where, as here, “a

district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.”         Id. at 1604.

       The “erroneous admission of a coerced confession is subject to harmless

error analysis under Arizona v. Fulminante , 499 U.S. 279, 310 . . . (1991).”

Castro v. Ward , 138 F.3d 810, 823 (10th Cir. 1998) (citing          United States v.

McCullah , 76 F.3d 1087, 1101 (10th Cir. 1996)). A federal court should not grant

habeas relief unless it finds the state court’s trial error “‘had substantial and

injurious effect or influence in determining the jury’s verdict.’”        Brecht v.

Abrahamson , 507 U.S. 619, 637 (1993) (quoting          Kotteakos v. United States , 328

U.S. 750, 776 (1946)). Thus, the erroneous admission of a confession may be

“harmless in light of the ‘overwhelming evidence to convict [the defendant] of

                                             -5-
the crimes charged even in the absence of his coerced statements.’”     Castro , 138

F.3d at 823 (quoting McCullah , 76 F.3d at 1101).

      Even if, like the district court, we assume that the admission of the

challenged statement was error, we conclude it is harmless error in light of the

other evidence properly admitted. Hickles has therefore failed to make a

substantial showing of the denial of a constitutional right, as required by

§ 2253(c)(2). For substantially the same reasons articulated in the district court’s

order of June 14, 1999, attached hereto, we deny Hickles’ request for a certificate

of appealability and DISMISS his appeal.



                                                       Entered for the Court



                                                       Wade Brorby
                                                       Circuit Judge




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Attachment not available electronically.
