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 appearing 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 corpus petition. See 28 U.S.C.

§ 2253(c)(1)(A). Because we conclude that Petitioner has failed to make “a

substantial showing of the denial of a constitutional 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 obstruction of a law enforcement

officer. He was sentenced to 238 months’ imprisonment. Petitioner’s convictions
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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 petition 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 violation of the law-of-the-case

doctrine, (3) the improper admission of an address book, entitled “Prison

Fellowship,” (4) a prejudicial in-court identification, 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 reasoning and conclusions and

dismissed the petition. This request for a COA followed. 

The magistrate and district court reached Petitioner’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 claims decided on the merits,

Petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). But “[w]hen the district court 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
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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 showings, we do not

undertake a “full consideration of the factual or legal 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 overview of the claims in the

habeas petition and a general assessment of their merits.” Id. 

With these benchmarks in mind, we have reviewed Petitioner’s brief, the

magistrate’s report and recommendation, the district court’s order, and the record

on appeal. Petitioner has failed to “demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional 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 forth in the magistrate’s

December 12, 2002, report and recommendation, and the 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