                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          June 28, 2005
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 WILLIAM E. INMAN,

       Petitioner - Appellant,
 v.
                                                        No. 04-3503
                                                (D.C. No. 02-CV-3310-RDR)
 STATE OF KANSAS; DAVID R.
                                                          (D. Kan.)
 MCKUNE, Warden of the Lansing
 Correctional Facility,

       Respondents - Appellees.


                                     ORDER


Before EBEL, MCKAY and HENRY, Circuit Judges.



      Petitioner-Appellant William E. Inman, proceeding pro se, moves for a

Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) in order to

challenge the district court’s denial of his 28 U.S.C. § 2254 petition for habeas

relief. We DENY Inman’s motion for a COA and DISMISS his appeal.

I.    Background

      In February 1998, a jury in Kansas state court convicted Inman of

aggravated criminal sodomy and sexual battery. The convictions related to a July

1997 sexual encounter between Inman and a co-tenant in the duplex in which the
two lived. The state court of appeals affirmed Inman’s convictions, and the state

supreme court denied Inman’s petition for review.

      In March 2000, Inman filed for habeas relief in state court, attacking his

sentence under K.S.A. § 60-1507. 1 In his motion seeking habeas relief in state

court, Inman asserted that he was denied the effective assistance of counsel, and

that he was denied a fair trial because of the improper conduct of the trial judge.

The state court denied the motion after an evidentiary hearing. The state court of

appeals affirmed the denial of relief, and the state supreme court denied Inman’s

petition for review.

      Inman then filed a petition for habeas relief in the United States District

Court for the District of Kansas under 28 U.S.C. § 2254. Inman’s habeas petition

argued that:




      1
          K.S.A. § 60-1507 provides, in pertinent part, that:

      A prisoner in custody under sentence of a court of general
      jurisdiction claiming the right to be released upon the ground that the
      sentence was imposed in violation of the constitution or laws of the
      United States, or the constitution or laws of the state of Kansas, or
      that the court was without jurisdiction to impose such sentence, or
      that the sentence was in excess of the maximum authorized by law, or
      is otherwise subject to collateral attack, may . . . move the court
      which imposed the sentence to vacate, set aside or correct the
      sentence.

K.S.A. § 60-1507(a).

                                           -2-
1.    Trial counsel was ineffective because he failed to make an objection or
      develop a record regarding a juror whom Inman claims was sleeping during
      Inman’s trial.

2.    Although the trial judge observed the juror sleeping, the judge failed to
      inquire into what information the juror may have missed, thereby denying
      Inman the right to have his case tried to a jury of twelve of his peers.

3.    Trial counsel was ineffective because he did not adequately investigate or
      ultimately call two witnesses.

4.    The trial judge used facial expressions, gestures, body language, and voice
      inflections to Inman’s disadvantage during the trial.

The district court first denied Inman’s request that the district court appoint

counsel to advance these arguments. The district court then denied Inman all

relief on his claims. Finally, the district court denied Inman’s request for a

certificate of appealability.

      In this appeal, Inman argues that:

1.    He was denied a fair and equitable means to develop and present his § 2254
      habeas petition properly because the district court denied him access to
      legal counsel prior to denying that petition.

2.    Trial counsel was ineffective because he failed to bring a sleeping juror to
      the attention of the trial court.

3.    The trial judge abused his discretion when he saw the juror asleep and did
      nothing.

4.    The district court erred in determining that trial counsel was not ineffective
      based on counsel’s failure to call two witnesses, and the evidence presented
      in Inman’s petition does not support the district court’s determination that
      trial counsel was not ineffective.



                                         -3-
Thus, Inman continues to press three of the four issues that he raised in his

original § 2254 petition. 2 Inman adds to these three issues the argument that the

district court erred in refusing to appoint counsel to help Inman advance the

claims asserted in his pro se § 2254 petition.

II.   Analysis

      Inman is not entitled to habeas relief on any of the four arguments that he

raises before us.

      A.     Denial of Counsel in § 2254 Proceedings

      Inman is not entitled to habeas relief on his first argument, which alleges

that the district court improperly denied him access to counsel prior to denying

his § 2254 petition. We have noted that “there is no constitutional right to

counsel beyond the appeal of a criminal conviction, and . . . generally

appointment of counsel in a § 2254 proceeding is left to the court’s discretion.”

Swazo v. Wyoming Dept. of Corr. State Penitentiary Warden, 23 F.3d 332, 333

(10th Cir. 1994); see also Coleman v. Thompson, 501 U.S. 722, 756-57 (1991).

“The district court[’s] . . . denial of counsel will not be overturned unless it would




      2
        Though Inman frames his fourth argument on appeal as a critique of the
district court’s ruling on his § 2254 petition, the substance of the argument is that
trial counsel was ineffective because counsel failed to call two witnesses or fully
investigate their possible exculpatory testimony—the same argument that Inman
raised in his § 2254 petition.

                                         -4-
result in fundamental unfairness impinging on due process rights.” Long v.

Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quotations and alteration omitted).

      In this case, before denying Inman’s request for court-appointed counsel,

the district court considered the merits of Inman’s claims, the nature of the factual

issues raised in those claims, Inman’s ability to present his claims, and the

complexity of the legal issues raised by the claims. See id. at 527. Based upon

our review of the record, we conclude that the district court did not abuse its

discretion in refusing to appoint counsel for Inman under the circumstances of

this case. See id.; cf. Swazo, 23 F.3d at 333.

      B.     Ineffective Assistance of Trial Counsel

      Inman is also not entitled to habeas relief on his second and fourth

arguments, which address the alleged ineffectiveness of his trial counsel. 28

U.S.C. § 2254 provides that a federal court cannot grant habeas relief

     with respect to any claim that was adjudicated on the merits in State
     court proceedings unless the adjudication of the claim—

            (1) resulted in a decision that was contrary to, or involved an
            unreasonable application of, clearly established Federal law, as
            determined by the Supreme Court of the United States; or

            (2) resulted in a decision that was based on an unreasonable
            determination of the facts in light of the evidence presented in
            the State court proceeding.

28 U.S.C. § 2254(d).




                                         -5-
      Federal courts evaluating § 2254 petitions also must presume that state-

court factual findings are correct. See 28 U.S.C. § 2254(e)(1); see also, e.g.,

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The habeas petitioner bears the

burden of rebutting that presumption by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1); see also, e.g., Darks v. Mullin, 327 F.3d 1001, 1007 (10th

Cir.), cert denied, 124 S. Ct. 433 (2003).

      Both of Inman’s claims addressing the alleged ineffectiveness of his trial

counsel were evaluated by Kansas state courts when they rejected Inman’s state

habeas petition. There is no clear and convincing reason to reject the state courts’

disposition of the facts surrounding Inman’s ineffective-assistance arguments.

The state courts did not arrive at a conclusion opposite to that reached by the

Supreme Court on a question of law, nor did the state courts decide a case

differently than the Supreme Court has on a materially indistinguishable set of

facts. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Finally, the state

courts did not unreasonably apply correct governing legal principles to the facts

of Inman’s case. See id. at 413. Therefore, Inman is not entitled to habeas relief

on his ineffective-assistance arguments.

      C.     Trial Court’s Inaction after Observing Sleeping Juror

      Finally, Inman is not entitled to habeas relief on his third argument, which

alleges that the trial judge abused his discretion when he saw a juror sleeping and


                                         -6-
did nothing in response. Inman made a variant of this argument in his state

habeas petition, in contending that the trial judge “engaged in improper, extra-

judicial conduct that deprived defendant of a fair trial.” Specifically, Inman

noted in his state habeas petition that “[t]he trial judge was well aware [that one

of the jurors fell asleep] and the only response made to this fact by the trial judge

was to laugh about it.” In resolving Inman’s claims, the state trial court found

that

       [t]he “nod off” was only for a few seconds and [the juror] was
       quickly elbowed to alertness by an adjoining juror. Given the fact
       that this was a three-day trial, this brief lapse did not prejudice
       plaintiff’s right to a fair trial.

The state trial court went on to conclude that “the trial judge acted properly

without favoritism toward the prosecution or plaintiff” and that “plaintiff’s

constitutional right to a fair trial with . . . a fair and impartial presiding judge

ha[s] been met.” Though the state appellate court did not address this specific

issue in resolving Inman’s appeal from the state trial court’s decision, the state

appellate court did not disturb this finding by the state trial court.

       As with Inman’s ineffective-assistance claim, there is no clear and

convincing reason to reject the state courts’ disposition of the facts surrounding

Inman’s abuse-of-discretion argument. The state courts did not arrive at a

conclusion opposite to that reached by the Supreme Court on a question of law,

decide a case differently than the Supreme Court has on a materially

                                          -7-
indistinguishable set of facts, or unreasonably apply correct governing legal

principles to the facts of Inman’s case. Therefore, Inman is not entitled to habeas

relief on his abuse-of-discretion argument. 3

III.   Conclusion

       It is clear that Inman is not entitled to habeas relief on any of the arguments

that he raises on appeal. Further, Inman simply cannot establish that “reasonable

jurists could debate whether (or, for that matter, agree that) [his § 2254] 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, 529

U.S. 473, 483-84 (2000) (quotations omitted). We therefore DENY his request




       3
        To the extent that Inman might claim that the state trial court’s decision is
not entitled to deference because the court resolved his abuse-of-discretion claim
in a truncated fashion, that argument is without merit. “Even if a state court
resolves a claim in a summary fashion with little or no reasoning, we owe
deference to the state court’s result.” Paine v. Massie, 339 F.3d 1194, 1198 (10th
Cir. 2003). In such cases, we must “uphold the state court’s summary decision
unless our independent review of the record and pertinent federal law persuades
us that its result unreasonably applies clearly established federal law.” Id. at
1198 (quotations and alteration omitted). In this case, our review of the record
and pertinent federal law does not convince us that such a conclusion is
warranted.
       To the extent that Inman might claim that it is inappropriate for us to rule
on this issue, since the district court did not address it in dismissing Inman’s §
2254 petition, that argument is also without merit. “[T]here are circumstances in
which a federal appellate court is justified in resolving an issue not passed on
below, as where the proper resolution is beyond any doubt . . . .” Singleton v.
Wulff, 428 U.S. 106, 121 (1976). This is such a case.

                                         -8-
for a COA and DISMISS this appeal.



                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




                                      -9-
