                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            July 8, 2005

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 TONY BRANDON HUNT,

          Petitioner-Appellant,

 v.
                                                        No. 04-3487
                                                (D.C. No. 04-CV-3042-WEB)
 RAY ROBERTS, Warden, El Dorado
                                                          (Kansas)
 Correctional Facility; ATTORNEY
 GENERAL OF THE STATE OF
 KANSAS,

          Respondents-Appellees.



                                     ORDER


Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges.


      Tony B. Hunt applies pro se 1 for a certificate of appealability (COA) of the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. §

2254. Exercising jurisdiction under 28 U.S.C. § 2253(c)(1), we see no basis for

an appeal, deny a COA, and dismiss the appeal.

      Mr. Hunt was convicted by a jury of second degree murder and attempted



      1
       We liberally construe Mr. Hunt’s pro se application. See Hall v. Scott, 292
F.3d 1264, 1266 (10th Cir. 2002).
first degree murder in Kansas state court. He filed a direct appeal, which was

denied. State of Kansas v. Hunt, 14 P.3d 430 (2000). He sought collateral review

in state court, which was similarly denied. He next petitioned the federal district

court for habeas relief, raising the following claims: 1) denial of due process

under Brady v. Maryland, 373 U.S. 83 (1963); 2) ineffective assistance by trial

and appellate counsel; 3) violation of due process because the state applied an ex

post facto law; 4) violation of his right to trial by a jury; and 5) cumulative errors

denying him a fair trial. The district court determined that Mr. Hunt’s petition

contained exhausted and unexhausted claims. It also determined, however, that

the unexhausted claims were now procedurally barred in state court and therefore

procedurally defaulted in federal court. The court then examined the remaining

claims on the merits and denied the petition.

      Mr. Hunt contended he suffered a Brady violation because the state failed

to disclose the murder victim’s criminal history related to possession of marijuana

and an assault. He argued that this information would have justified an

instruction for voluntary manslaughter at trial. The district court evaluated Mr.

Hunt’s allegation pursuant to Strickler v. Greene, 527 U.S. 263, 281-82 (1999). It

concluded that the information at issue was not favorable or exculpatory to Mr.

Hunt, and that it was not prejudicial to him within the meaning of Strickler. Rec.,

doc. 18 at 6 (citing Strickler, 527 U.S. at 290). Instead, it held the evidence was

merely cumulative.

      Mr. Hunt next claimed ineffective assistance of counsel because his
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attorney failed to use or investigate the murder victim’s prior convictions, and

failed to request attempted voluntary manslaughter instructions or to raise the

issue on appeal. 2 In denying this claim, the court held that Mr. Hunt had not

shown his counsel’s alleged failings caused any prejudice to his case under the

second prong of the Strickland standard. See Strickland v. Washington, 466 U.S.

668, 687 (1984).

      Mr. Hunt’s third issue was that he was denied due process because the

Kansas Supreme Court allegedly applied an ex post facto law which, in effect,

denied him a defense. He asserted that the state supreme court added new

elements to the voluntary manslaughter statute when it denied on appeal and

collateral review his claims that he was entitled to jury instructions under the

statute. Because the state supreme court’s decision on this issue was not clear as

to whether it was based on procedural or substantive grounds, the district court

reviewed the state decisions under a procedural bar analysis as well as on the

merits. Under either analysis, the court concluded that the state court’s rulings

regarding jury instructions did not implicate federal ex post facto or due process

concerns at all because they “merely read petitioner’s facts as not meeting the

legal requirements” of the laws that would permit such instructions. Rec., doc. 18



      2
        In his petition to the district court, Mr. Hunt also claimed he received
ineffective assistance of counsel based on his appellate counsel’s failure to appeal
the rejection of an attempted second degree murder instruction. He has not raised
this issue in his COA, and we thus consider it abandoned. See Tran v. Trs. of
State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004).
                                            -3-
at 16.

         Mr. Hunt also contended he was denied the right to a jury trial because the

trial court refused to issue voluntary manslaughter instructions. The district court

concluded the claim was unexhausted, procedurally barred at the state level, and

therefore procedurally defaulted in federal court. Finding no cause existed for the

default and no showing of a miscarriage of justice, it determined that the issue

could not be reviewed on the merits in federal court. 3 Mr. Hunt’s final assertion

was that his counsel’s cumulative errors, along with the suppression of

exculpatory evidence, denied him the right to a fair trial. The court concluded

that because there were no cognizable errors, Mr. Hunt’s cumulative error

argument necessarily failed.

         Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 332,

335-36 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 537 U.S. at 327. When a district court has

dismissed a habeas petition on procedural grounds, a prisoner must also show that



       In his application for a COA, Mr. Hunt contends he did exhaust this issue.
         3

Even the most liberal readings of Mr. Hunt’s filings in federal and state courts,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall, 292 F.3d at 1266, do
not support this exhaustion claim.
                                       -4-
“jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA

determination under § 2253(c) requires an overview of the claims in the habeas

petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336.

“This threshold inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims. In fact, the statute forbids it.” Id. While

Mr. Hunt is not required to prove the merits of his case, he must demonstrate

“something more than the absence of frivolity or the existence of mere good

faith” on his part. Id. at 338 (internal quotations and citation omitted).

      With these principles in mind, we have carefully reviewed the record of

these proceedings and the well reasoned and detailed order of the district court.

For the reasons given by the district court in its disposition of Mr. Hunt’s habeas

petition, we conclude that reasonable jurists would not debate that court’s

resolution of the constitutional claims presented or its procedural rulings. We

therefore DENY Mr. Hunt’s request for a certificate of appealability, and

DISMISS the appeal.

                                               SUBMITTED FOR THE COURT

                                               Stephanie K. Seymour
                                               Circuit Judge




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