* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAR 24 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GORDON E. STROPE, Petitioner-Appellant,

v. DAVID R. McKUNE, Warden, Lansing Correctional Facility; CARLA J. STOVALL, Attorney General of Kansas, Respondents-Appellees. No. 02-3336 (District of Kansas) (D.C. No. 01-CV-3164-DES)

ORDER AND JUDGMENT *

BeforeSEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

On April 30, 2001, pro se petitioner, Gordon E. Strope, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 225 4 in federal district court. The district court denied the petition and Strope n ow seeks a certificate of appealability (“COA”) from this court. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a final order disp osing of a § 2254 petition unless the petitioner first obtains a COA). Strope is not entitled to a COA unless he can make a “substantial showing of the denial of a constitutional right.” Id . § 2253(c)(2). Strope can make this showing by demons trating that the issues raised are debatable among jurists, a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Strope raised five claims in his § 2254 petition: ( 1) he was denied due process when the state trial judge denied his reque st for a continuance of his trial; (2) he was denied his constitutional right t o a jury trial; (3) the sentence he received was calculated based on erroneous informat ion; (4) he was denied a fair trial because the state trial judge was biased agai nst him; and (5) his trial counsel was constitutionally ineffective. The district court concluded that Strope’s claim th at he received an erroneous sentence is procedurally barred because i t was not presented to the Kansas Court of Appeals. See Coleman v. Thompson , 501 U.S. 722, 735 n.1-3-

(1991). As to Strope’s other claims, the district court concluded that the state court’s adjudication of those claims did not result“in a decision that was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court” orresult “in a decision that was based on an unreasonable determination of the f acts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor , 529 U.S. 362, 405-13 (2000). We have conducted a“preliminary, though not definitive, consideration” of the legal framework applicable to each of Strope’s claims. See Miller-El v. Cockrell , 123 S. Ct. 1029, 1040 (2003). From our examination, we conclude that Strope has failedto “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack , 529 U.S. at 484. Accordingly, Strope has not made “a substantial showing of the denial of a cons titutional right” and is not entitled to a COA on this issue. 28 U.S.C. § 2253(c). This court denies Strope’s request for a COA for substantially those reasons s et forth in the district court’s order dated August 26, 2002, and dismisses this appeal.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge