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

### MAR 28 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY RAY MARTIN,

Petitioner-Appellant, No. 03-3024

v. (D.C. No. 02-CV-3145-SAC) DAVID MCKUNE and THE ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees. (D. Kansas)

ORDER

Before EBEL , HENRY , and HARTZ , Circuit Judges.
Petitioner Anthony Ray Martin, a state prisoner app earing pro se, seeks a certificate of appealability (COA) that would allow him to appeal from the district court’s order denying his 28 U.S.C. § 2254 habeas c orpus petition. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that Petition er has failed to make “a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253 (c)(2), the request for a COA is denied and the matter is dismissed. Petitioner was convicted of one count of aggravated battery, nine counts of burglary, ten counts of theft, and one count of obs truction of a law enforcement officer. He was sentenced to 238 months’ imprisonm ent. Petitioner’s convictions-2-

were affirmed on direct appeal to the Kansas Court of Appeals, and the Kansas Supreme Court denied his petition for review. On May 23, 2002, Petitioner filed this § 2254 petit ion alleging he was entitled to relief because of the following five errors at his trial: (1) the improper admission of uncharged-crime evidence, (2) a violat ion of the law-of-the-case doctrine, (3) the improper admission of an address book, entitled “Prison Fellowship,” (4) a prejudicial in-court identificat ion, and (5) insufficient evidence to support his convictions. The magistrate reviewed the petition thoroughly and recommended that it be denied. After Petitioner filed no objections to the magistrate’s report and recommendation, the district court adopted its reas oning and conclusions and dismissed the petition. This request for a COA fol lowed. The magistrate and district court reached Petitione r’s first, fourth, and fifth constitutional claims on the merits, and concluded that the second and third were procedurally defaulted. To obtain a COA on the cla ims decided on the merits, Petitioner “must demonstrate that reasonable jurist s would find the district court’s assessment of the constitutional claims debatable o r wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). But “[w]hen the districtcourt denies a habeas petition on procedural grounds without reaching the prisoner 's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason-3-

would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling .” Id. (emphasis added). In assessing whether Petitioner has made these show ings, we do not undertake a “full consideration of the factual or l egal bases adduced in support of the claims.” Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003). Rather, “[t]he COA determination under § 2253(c) requires an overv iew of the claims in the habeas petition and a general assessment of their m erits.” Id. With these benchmarks in mind, we have reviewed Pet itioner’s brief, the magistrate’s report and recommendation, the distric t court’s order, and the record on appeal. Petitioner has failed to “demonstrate t hat reasonable jurists would find the district court’s assessment of the constitution al claims debatable or wrong,” and he has not shown “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling .” Slack, 529 U.S. at 484. Therefore, for substantially the same reasons set f orth in the magistrate’s December 12, 2002, report and recommendation, and t he district court’s January 7, 2003, order, we DENY Petitioner’s request for a COA. The matter is
DISMISSED

. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge