* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 c ited 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 dismi ssing 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 co urt 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 appeal ability. 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 req uirement. This determination is irrelevant, however, because we conclude that regar dless 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 notwi thstanding a failure to exhaust). Petitioner raises four issues on appeal. He claims that he was convicted under an unconstitutional state statute, denied a s peedy trial, denied effective assistance of counsel, and convicted on the basis o f 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 sub section (a)(1) of K.S.A. 21- 3503." Kan. Stat. Ann. § 21-3603(a)(2)(B). Petiti oner contends that § 21- 3503(a)(1) is unconstitutionally vague, citing to S tate v. Conley , 531 P.2d 36 (Kan. 1975). Although Conleydid hold that § 21-3503 contained unconstitutionally vague language, the legislature subsequently modified the statute and the modified language was held to be co nstitutional 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. Becau se the statutes cited by petitioner are not applicable to the appellate proc ess, we reject this claim. Petitioner claims that he was denied effective assi stance of counsel by both trial and appellate counsel for their failure to as sert the unconstitutionality of the statute and the denial of the right to a speedy tri al. 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 witne ss 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