* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
ROOSEVELT BROWN,

Petitioner-Appellant,

v. ROBERT D. HANNIGAN and ATTORNEY GENERAL OF KANSAS, Respondents-Appellees. No. 98-3043 (D.C. No. 96-CV-3267) (D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Roosevelt Brown, appearing pro se, seeks a certificate of appealability in order to appeal the district court ’s denial of his writ of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal can be taken from the denial of a § 2254 hab eas petition unless the petitioner first obtains a certificate of appealabi lity). Petitioner was convicted in Kansas in 1993 for crim inal trespass, aggravated kidnaping and rape. On direct appeal, p etitioner’s criminal trespass conviction was reversed, but his kidnaping and rape convictions were affirmed. The Kansas Supreme Court denied review, after whichpetitioner filed this § 2254 petition. His petition claims that he was denied d ue process when the trial court allowed the jury to hear a partial rereading of pet itioner’s and the victim’s testimony. Petitioner argues the rereading of test imony was not responsive to the jury’s request. Petitioner also claims that he was denied due process when the trial court admitted evidence of a love letter he w rote to the victim while he was awaiting trial. He claims that the letter was irre levant and was improperly introduced to show that he was trying to manipulate the victim. The district court denied the petition, finding that the alleged errors did not have a substantial and injurious effect on the jury ’s verdict. In a subsequent order, the district court denied petitioner’s reque st for a certificate of appealability.-3-

Whether testimony of a witness shall be reread to ajury during the course of its deliberations is a matter lying within the s ound discretion of the trial court. See United States v. Brunetti , 615 F.2d 899, 902 (10th Cir.1980). While we have recognized that rereading of witness testimony to the jury during deliberations is disfavored because of the potential that the jury m ight unduly emphasize that evidence, see United States v. Keys , 899 F.2d 983, 988 (10th Cir. 1990), we find no abuse in the trial judge’s exercise of its discr etion and we agree with the district court that the alleged error did not have a substantial and injurious effect or influence in determining the jury’s verdict. See Brecht v. Abrahamson , 507 U.S. 619, 637-38 (1993). We also agree with the di strict court that the admission of the love letter did not have a substantial and i njurious effect on the jury’s verdict. Upon careful review of the record, we conclude thatthe district court’s order denying petitioner’s habeas corpus petition i s not debatable, reasonably subject to a different outcome on appeal, or otherw ise deserving of further proceedings. See Gallagher v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) (discussing how to make substantial showing of deni al of constitutional right). Thus, we find that petitioner has not made a substa ntial showing of the denial of a constitutional right and that the district court pr operly denied petitioner’s application for a certificate of appealability. Ac cordingly, we DENY petitioner’s-4-

request for a certificate of appealability and DISM ISS the appeal. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge