1 The district court granted Woodberry leave to proce ed in forma

pauperis (R., No. 04-3456, doc. 27 at 4; R., No. 04 -3457, doc. 75 at 4.). See 28 U.S.C. § 1915. 

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

### MAR 1 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS WOODBERRY, Petitioner - Appellant, v. LOUIS E. BRUCE, Warden; THE STATE OF KANSAS; ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents - Appellees. Nos. 04-3456, 04-3457 (D.C. Nos. 00-3407-SAC, 00-3394-SAC) (D. Kan.)

ORDER

Before EBEL , McKAY and HENRY , Circuit Judges.
In these cases, Petitioner-Appellant Thomas Woodberry appeals 1 the district court’s decision denying him habeas relief, see 28 U.S.C. § 2254, from his 1979 Kansas convictions on three counts of aggravated ro bbery and one count of aggravated battery; and his 1993 Kansas conviction for conspiring to commit aggravated robbery. (R., No. 04-3456, doc. 20.) W oodberry argues that his defense attorney in the 1979 case was ineffective f or failing to have the State try2 Woodberry specifically argues that his trial counse l failed to obtain

separate trials for each count; to seat a jury of W oodberry’s peers; to object to government witnesses’ identification testimony; to defend Woodberry properly, “due to his conduct after the verdict;” and to defe nd Woodberry to the best of the attorney’s ability, because Woodberry was convictedwithout the Government’s presenting sufficient evidence of his guilt. (R., N o. 04-3456, doc. 1 at 6-6e; doc. 19 at 6-8.)

3 These appeals stem from two habeas petitions Woodbe rry filed in 2000. (R., No. 04-3456, doc. 1; R., No. 04-3457, do c. 1.) In those petitions, Woodberry, in addition to asserting his ineffective -assistance claims, argued his 1979 sentence had expired, his remaining sentences should be converted to sentences under the Kansas sentencing guidelines an d, according to those guidelines, he was entitled to be released. (R., N o. 04-3456, doc 1. at 6 to 6e; R., No. 04-3457, doc. 1 at 6-6f.) The district court c onsolidated these cases and denied Woodberry relief on his sentencing claims. (R., No. 04-3457, doc. 3.) This court affirmed that decision, but remanded Woo dberry’s ineffective-assistance claims for the district court to consider. See Woodberry v. Bruce , 13 Fed. Appx. 780, 782 (10th Cir. June 18, 2001) (unpublished) (also found at R., No. 04-3457, doc. 12.). These curren t appeals stem from those remand proceedings and concern only Woodberry’s ine ffective-assistance claims. - 2 - him separately on each of the four counts he faced, inadequately representing him at trial, 2 and abandoning him on direct appeal (R., No. 04-34 56, doc. 1 at 6-6a); and his defense attorney in the 1993 case was ineff ective for failing to advise Woodberry, before he pled guilty, that his sentence would run consecutively to his prior sentences and would not be calculated under the Kansas sentencing guidelines. 3 (R., No. 04-3457, doc. 1 at 6a) The district co urt denied relief, holding, in part, that Woodberry had procedurally d efaulted his claims challenging his 1979 convictions, and that his clai ms challenging his 1993- 3 -

conviction did not warrant habeas relief. (R., No. 04-3457, doc. 70.) Woodberry appeals. To pursue these appeals, Woodberry must first obtai n a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1). To be entitled to a COA, Woodberry must make a “substantial showing of the d enial of a constitutional right.” Id. § 2253(c)(2). To make this showing, he must estab lish that “reasonable jurists could debate whether (or for th at matter, agree that) the petition should have been resolved [by the districtcourt] in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 483-84 (2000) (quotations omitted). For the claims the district court deemed procedural ly defaulted, Woodberry must make a “substantial showing of the denial of a cons titutional right,” 28 U.S.C. § 2253(c)(2), and show “that jurists of reason woul d find it debatable whether the district court was correct in its procedural ruling ,” Slack , 529 U.S. at 478, 484 (quotation omitted). Woodberry has failed to make the requisite showing in these cases. Therefore, for substantially the reasons st ated by the district court, we DENY Woodberry a COA and DISMISS both appeals.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge