1 The district court granted Woodberry leave to proceed 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 appeals1 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 robbery and one count of

aggravated battery; and his 1993 Kansas conviction for conspiring to commit

aggravated robbery. (R., No. 04-3456, doc. 20.) Woodberry argues that his

defense attorney in the 1979 case was ineffective for failing to have the State try
2 Woodberry specifically argues that his trial counsel failed to obtain

separate trials for each count; to seat a jury of Woodberry’s peers; to object to

government witnesses’ identification testimony; to defend Woodberry properly,

“due to his conduct after the verdict;” and to defend Woodberry to the best of the

attorney’s ability, because Woodberry was convicted without the Government’s

presenting sufficient evidence of his guilt. (R., No. 04-3456, doc. 1 at 6-6e; doc.

19 at 6-8.)

3 These appeals stem from two habeas petitions Woodberry filed in

2000. (R., No. 04-3456, doc. 1; R., No. 04-3457, doc. 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 and, according to those

guidelines, he was entitled to be released. (R., No. 04-3456, doc 1. at 6 to 6e; R.,

No. 04-3457, doc. 1 at 6-6f.) The district court consolidated these cases and

denied Woodberry relief on his sentencing claims. (R., No. 04-3457, doc. 3.) 

This court affirmed that decision, but remanded Woodberry’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 Appx. 780, 782 (10th Cir. June 18, 2001) (unpublished) (also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 current appeals stem from those

remand proceedings and concern only Woodberry’s ineffective-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. 04-3456, doc. 1 at 6-6a);

and his defense attorney in the 1993 case was ineffective 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 court denied relief,

holding, in part, that Woodberry had procedurally defaulted his claims

challenging his 1979 convictions, and that his claims 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 obtain 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 denial of a constitutional

right.” Id. § 2253(c)(2). To make this showing, he must establish that

“reasonable jurists could debate whether (or for that matter, agree that) the

petition should have been resolved [by the district court] 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 procedurally defaulted, Woodberry must

make a “substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), and show “that jurists of reason would 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 stated by the district court, we

DENY Woodberry a COA and DISMISS both appeals. 

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge