*The case is unanimously ordered submitted without oral argument pursuant to Fed. R.

App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except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

DEC 11 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN E. DOWELL,

Petitioner - Appellant,

v.

DAVID R. MCKUNE; ATTORNEY

GENERAL FOR THE STATE OF

KANSAS,

Respondents - Appellees.

No. 97-3231

(D.C. No. 97-3079-DES)

(District of Kansas)

ORDER AND JUDGMENT*

Before ANDERSON, MCKAY and LUCERO, Circuit Judges.

Petitioner appeals the district court’s order dismissing without prejudice his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district

court concluded that petitioner failed to exhaust available state remedies on the

claims presented in federal court. The district court also found that petitioner

failed to make a substantial showing of the denial of a constitutional right and
- 2 -

therefore declined to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

After a careful review of the record on appeal, it is unclear whether

petitioner did, in fact, satisfy the exhaustion requirement. This determination is

irrelevant, however, because we conclude that regardless of whether the claims

were exhausted, they are all without merit. See 28 U.S.C. § 2254(b)(2)

(authorizing denial of petition on the merits notwithstanding a failure to exhaust).

Petitioner raises four issues on appeal. He claims that he was convicted

under an unconstitutional state statute, denied a speedy trial, denied effective

assistance of counsel, and convicted on the basis of perjured testimony. None of

these issues has merit.

Petitioner was convicted in the state of Kansas of aggravated incest for

engaging in “any lewd fondling, as described in subsection (a)(1) of K.S.A. 21-

3503." Kan. Stat. Ann. § 21-3603(a)(2)(B). Petitioner contends that § 21-

3503(a)(1) is unconstitutionally vague, citing to State v. Conley, 531 P.2d 36

(Kan. 1975). Although Conley did hold that § 21-3503 contained

unconstitutionally vague language, the legislature subsequently modified the

statute and the modified language was held to be constitutional by the Supreme

Court of Kansas. State v. Voiles, 601 P.2d 1121, 1124 (Kan. 1979) (citing State

v. Wells, 573 P.2d 580 (Kan. 1977)). 
- 3 -

Petitioner contends that he was denied the right to a speedy trial pursuant to

Kan. Stat. Ann. § 22-3402(1), (4) and §§ 22-4301 to -4303 because of the length

of time his case was under appellate review. Because the statutes cited by

petitioner are not applicable to the appellate process, we reject this claim.

Petitioner claims that he was denied effective assistance of counsel by both

trial and appellate counsel for their failure to assert the unconstitutionality of the

statute and the denial of the right to a speedy trial. Because we hold that neither

claim is meritorious, petitioner cannot demonstrate either deficient performance

of counsel or prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Finally, petitioner argues that a prosecution witness committed perjury. 

The credibility of witnesses is a determination to be made by the jury, and we will

not second-guess this determination. See United States v. Youngpeter, 986 F.2d

349, 353 (10th Cir. 1993). 

We DENY petitioner’s application for a certificate of appealability and

DISMISS the petition with prejudice.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge