* This order is not binding precedent except under the doctrines of law of the

case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** 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. 

FILED

United States Court of Appeals

Tenth Circuit

February 24, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PARRISH BOURNE,

Petitioner-Appellant,

v.

STATE OF KANSAS; ATTORNEY

GENERAL OF KANSAS,

Respondents-Appellees.

No. 07-3228

(D.C. No. 05-CV-3363-JAR)

(D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.**

Parrish Bourne, a Kansas state prisoner represented by counsel, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

28 U.S.C. § 2254 petition for habeas relief from his Kansas conviction for

aggravated arson. See id. § 2253(c)(1)(A). Mr. Bourne is entitled to a COA only

if he has “made a substantial showing of the denial of a constitutional right.” Id.
-2-

§ 2253(c)(2). To make such a showing, he must demonstrate that “reasonable

jurists could debate whether . . . 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 his counseled habeas petition, Mr. Bourne contends correctional officers

denied him access to his attorney during the week preceding trial, thereby

denying him his rights to (1) effective assistance of counsel and (2) a fair trial. 

The facts he provides in support of these two grounds for relief are identical. The

federal district court construed both “grounds [to] allege that petitioner was

denied his right to counsel under the Sixth Amendment when he was unable to

consult with his defense counsel the week before his trial commenced.” Aplt.

App. at B-7. 

In a thorough memorandum and order denying Mr. Bourne’s § 2254

petition, the district court set forth the facts and standard of review, and applied

the applicable law. In so doing, it observed:

Petitioner states that he was ‘unable, as a direct result of the

correctional officer’s actions, to pass on important information

regarding his upcoming jury trial.’ Yet, petitioner does not explain

what information he was prevented from relaying to his counsel, and

he fails to explain how this caused him to suffer harm at his trial. 

Also, the record shows that petitioner was able to communicate

freely with his counsel in the previous weeks leading up to trial,

meaning that petitioner could have passed on this information to his

counsel at that time. And further, petitioner was able to
-3-

communicate with his counsel on the Saturday before trial, and there

is nothing in the record to indicate that petitioner was unable to give

such information to his counsel at that time.

Id. at B-13 to B-14 (emphasis added). 

Having carefully considered the record, Mr. Bourne’s arguments on appeal,

and the applicable law, we conclude, for substantially the same reasons stated in

the district court’s memorandum and order, that Mr. Bourne has failed to make

the requisite showing. We therefore DENY his request for a COA and DISMISS

the appeal.

Entered for the Court

David M. Ebel

Circuit Judge