                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 15 2002
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 ROBERT E. MURPHY,

               Petitioner-Appellant,                    No. 01-3288
          v.                                   (D.C. No. 98-CV-3226-DES)
 ROBERT D. HANNIGAN, DAVID R.                           (D. Kansas)
 MCKUNE, and CARLA STOVALL,
 Attorney General of Kansas,

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered

submitted without oral argument.

      Robert E. Murphy, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas


      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
corpus petition. Mr. Murphy was convicted of attempted rape and sentenced to

three to ten years’ imprisonment. His conviction was affirmed on direct appeal.

In his habeas petition, Mr. Murphy contends that (1) the prosecution knowingly

used perjured testimony and manufactured evidence, (2) the trial court improperly

excluded evidence, and (3) his counsel provided ineffective assistance. The

district court denied the petition. We have jurisdiction under 28 U.S.C. § 1291

and, for the reasons set forth below, deny the application for a COA and dismiss

the appeal.

      To qualify for a COA, a defendant must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Murphy may make

this showing by demonstrating that the issues raised are debatable among jurists,

that a court could resolve the issues differently, or that the questions raised

deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000).

      Mr. Murphy claimed on direct appeal that the evidence was insufficient and

the State failed to prove the requisite intent. The Kansas Court of Appeals

affirmed his conviction, and the Kansas Supreme Court denied review. These

issues are not before this court.




                                          -2-
      In his state post-conviction proceedings, Mr. Murphy alleged the grounds

raised in his § 2254 petition. The state court held an evidentiary hearing and

concluded that Mr. Murphy had failed to demonstrate any violation of his rights.

       “In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo,” keeping in mind that “our review of the state court’s

proceedings is quite limited.” Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.

1999). The district court, in a thorough memorandum and order, considered each

of Mr. Murphy’s claims on the merits and concluded that Mr. Murphy could not

demonstrate that the Kansas

      state court had reached a conclusion opposite to that reached by the
      Supreme Court on a question of law, decided the case differently
      than the Supreme Court has decided a case with a materially
      indistinguishable set of facts, or unreasonably applied the governing
      legal principle to the facts of the petitioner’s case.

Rec. doc. 29, at 2 (dist. ct. order filed on Aug. 10, 2001, at 2) (citing Williams v.

Taylor, 529 U.S. 362, 412-13 (2000)).

      We agree with the district court. Nothing in Mr. Murphy’s briefing nor the

record on appeal calls into question the soundness of the district court’s

conclusions. We do not find it debatable that the district court erred in its

assessment. Therefore, for substantially the same reasons set forth in the district




                                          -3-
court’s memorandum and order, we DENY petitioner’s application for a COA,

and DISMISS this appeal.

                                           Entered for the Court,



                                           Robert H. Henry
                                           Circuit Judge




                                     -4-
