*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. 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.

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*

Before SEYMOUR, MURPHY, and O’BRIEN, 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); 10th Cir. R. 34.1(G). The 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. § 2254 in federal district court. 

The district court denied the petition and Strope now 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 disposing 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 demonstrating 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 request for a continuance of his

trial; (2) he was denied his constitutional right to a jury trial; (3) the sentence he

received was calculated based on erroneous information; (4) he was denied a fair

trial because the state trial judge was biased against him; and (5) his trial counsel

was constitutionally ineffective. 

The district court concluded that Strope’s claim that he received an

erroneous sentence is procedurally barred because it 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 application of, clearly established

Federal law, as determined by the Supreme Court” or result “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)(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 failed to “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 constitutional 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 set forth in the district court’s

order dated August 26, 2002, and dismisses this appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge