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Noah J. Gleason v. David R. Mckune; Derek

April 5, 2013

NOAH J. GLEASON, PETITIONER - APPELLANT,
v.
DAVID R. MCKUNE; DEREK
SCHMIDT, ATTORNEY GENERAL OF THE STATE OF KANSAS, RESPONDENTS - APPELLEES.



(D. Kansas) (D.C. No. 5:11-CV-03110-SAC)

The opinion of the court was delivered by: Harris L Hartz Circuit Judge

United States Court of Appeals Tenth Circuit

Elisabeth A. Shumaker Clerk of Court

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, EBEL, and MURPHY, Circuit Judges.

Applicant Noah J. Gleason, a Kansas prisoner, applied pro se for relief under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas. The district court denied his application. He now seeks a certificate of appealability (COA) from this court to allow him to appeal the district court's decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of § 2254 relief). We deny the application for a COA and dismiss the appeal.

I. BACKGROUND

In 2002 Applicant was convicted in Kansas state court on one count of felony murder and was sentenced to life imprisonment. See State v. Gleason, 88 P.3d 218, 225-26 (Kan. 2004). The Kansas Supreme Court affirmed his conviction and sentence. See id. at 223. The Kansas Court of Appeals twice affirmed the denial of his motions for post-conviction relief, see Gleason v. State, 163 P.3d 1272, 2007 WL 2301919 (Kan. App. Aug. 10, 2007) (unpublished table decision); Gleason v. State, 239 P.3d 114, 2010 WL 3853191 (Kan. App. Sept. 24, 2010) (unpublished table decision); on each occasion the Kansas Supreme Court denied review.

Applicant then filed his § 2254 application raising 11 claims of violations of his rights to due process and a fair trial under the United States Constitution:

(1) trial counsel was ineffective in numerous respects; (2) the trial court gave an aiding-and-abetting instruction that misstated Kansas law; (3) the prosecutor used a theory of the crime in prosecuting him that was inconsistent with the theory used in prosecuting his co-defendants; (4) the prosecutor introduced false evidence of Applicant's confession and made a false statement in argument to the jury; (5) the prosecutor introduced evidence of Applicant's past crimes in violation of a trial-court order; (6) the prosecutor did not disclose to the jury the terms of the plea of a co-defendant; (7) the prosecutor and law-enforcement officers withheld evidence; (8) the district court failed to hold adequate pre- and post-trial evidentiary hearings; (9) appellate counsel was ineffective; (10) law-enforcement officers violated Miranda in obtaining his confession; and (11) the trial court gave a presumption-of-intent instruction, which was inconsistent with its presumption-of-innocence instruction. The district court denied relief. Applicant raises the first seven claims in his application for a COA.

II. DISCUSSION

A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires "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, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other words, "[w]here a district court has rejected the constitutional claims on the merits," the applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id. When a district court resolves the petition on procedural grounds, the applicant's burden is even greater; he must also show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a claim has been adjudicated on the merits in a state court, a federal court can grant habeas relief only if the applicant establishes that the state-court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1), (2). As we have explained:

Under the "contrary to" clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the ...


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