*

 This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

May 19, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH M. COOK, 

Petitioner–Appellant, No. 08-3156

v. (Case No. 07-CV-03149-RDR)

DAVID R. McKUNE, Warden,

Lansing Correctional Facility;

ATTORNEY GENERAL OF

KANSAS,

(D. Kan.)

Respondents–Appellees.

 

ORDER*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.

Petitioner, a state prisoner represented by pro bono counsel, seeks a

certificate of appealability to appeal the district court’s dismissal of his § 2254

habeas petition. Petitioner was originally convicted in 1993 of first degree

murder, and his conviction was affirmed by the Kansas Supreme Court in State v.

Cook, 913 P.2d 97 (Kan. 1996). His federal habeas petition was denied by the

district court, but on appeal we held that Petitioner’s Sixth Amendment rights had

been denied because the prosecution had not made a reasonable, good-faith effort
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to produce a key witness whose testimony from a preliminary hearing was

admitted as evidence at the trial. Cook v. McKune, 323 F.3d 825, 839-40 (10th

Cir. 2003). Petitioner was retried by the state and convicted of second degree

murder, and his conviction was affirmed by the Kansas Supreme Court in State v.

Cook, 135 P.3d 1147 (Kan. 2006). He subsequently filed the instant habeas

petition, raising the same claims he had raised before the Kansas Supreme Court.

Because the claims raised in this habeas petition were rejected on the

merits by the state court, Petitioner cannot obtain habeas relief unless the state

court’s decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” § 2254(d)(2). 

To obtain a certificate of appealability, Petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, he must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). 

After carefully reviewing Petitioner’s brief, the relevant state court
1

 Although Petitioner’s habeas petition raised a fifth claim related to his

sentencing, he does not seek a certificate of appealability as to that issue.

-3-

decisions, the district court’s disposition, and the record on appeal, we conclude

that Petitioner has not met the standard required to obtain a certificate of

appealability as to any of the issues he seeks to appeal.1

 

Petitioner’s first two claims are based on the Confrontation Clause of the

Sixth Amendment. Specifically, he argues that he was deprived of the right to

effectively cross examine the witnesses against him when the trial court (1)

refused to order a psychological evaluation of a key prosecution witness and (2)

refused his request for a continuance to search for and obtain medical records and

other information pertaining to this witness’s mental health history. However,

Petitioner cites to no Supreme Court precedent indicating that the Confrontation

Clause provides a defendant with a constitutional right to require a psychiatric

examination of a witness or to obtain a continuance based on speculation that

further impeachment information may exist. Indeed, the “Confrontation Clause

guarantees only an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense

might wish.” United States v. Owens, 484 U.S. 554, 559 (1988) (internal

quotation marks omitted). Moreover, as the district court noted, the record

indicates that the trial court allowed Petitioner’s counsel sufficient latitude in the

scope of his cross-examination of the witness’s mental problems. We conclude
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that reasonable jurists would not debate whether the district court erred in

concluding that Petitioner’s Confrontation Clause challenges did not constitute a

violation of established federal law.

Petitioner also argues that he is entitled to habeas relief based on the trial

court’s denial of his motion for a new trial based upon newly discovered

evidence. Specifically, he argues that the court erred in concluding that this

evidence—testimony given by an individual who shared a jail pod with Petitioner

that implicated a different individual in the crime—was not sufficiently credible

to make a different result reasonably likely upon retrial. Petitioner cites to no

clearly established federal law barring such a credibility assessment in the context

of a motion for a new trial based upon newly discovered evidence. Instead, he

argues that the trial court’s decision that this testimony was not credible was “an

unreasonable determination of the facts in light of the evidence presented,” 28

U.S.C. § 2254(d)(2). After carefully reviewing the record, however, we conclude

that reasonable jurists would not debate whether the trial court’s credibility

assessment was objectively unreasonable.

Petitioner’s fourth claim is premised on the trial court’s denial of his

motion to recall the jury. After trial, defense counsel submitted to the court an

affidavit from a juror attesting that during deliberations he heard another juror say

that this case was a retrial and that Petitioner had been convicted of the same

crime in the first trial. Defense counsel accordingly asked the court to recall the
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jury to determine whether this information influenced the jury’s deliberations. In

response, the government submitted affidavits from other jurors generally

indicating that they speculated the case was a retrial based on references to

witnesses’ prior testimony. In denying the motion to recall, the trial court noted

the lack of specificity in the first juror’s affidavit as to which juror said the case

was a retrial and as to whether that juror was merely speculating or actually knew

of the prior trial. On appeal, the Kansas Supreme Court held that this juror’s

affidavit was not conjectural but instead described another juror’s specific

personal knowledge regarding the fact of a retrial and Petitioner’s previous

conviction of this crime. Cook, 135 P.3d at 1159-61. However, the court 

affirmed the trial court’s decision not the recall to jury, concluding that this

decision did not constitute an abuse of discretion because it was in accordance

with clear Kansas law. Id. at 1161. Kansas law permits a juror to testify to

conditions or occurrences having a material bearing on the validity of the

indictment, but it prevents an inquiry into the subjective effect of such conditions

or occurrences on the individual jurors’ mental processes or the jury’s

deliberations. Id. at 1158. Thus, the question before the court was whether this

type of evidence would, by its nature, be likely to have a prejudicial effect on the

jury, not whether there was an actual effect in this specific case. Id. This

objective question of prejudice was resolved by the Kansas Supreme Court

decades ago in State v. Farrar, 176 P. 987, 988 (Kan. 1918), in which the court
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held that jurors’ knowledge that a defendant was previously convicted for the

same crime is not inherently prejudicial. Therefore, the court held that the trial

court did not err in this case by denying Petitioner’s motion to recall the jury.

Petitioner argues that the Kansas Supreme Court erred in holding that the

trial court did not need to recall the jury to explore the effects of the extrinsic

information regarding Petitioner’s prior conviction and retrial on the jury’s

deliberations. He also argues that the state court erred in holding that this

information was not inherently prejudicial, and he argues that the court should

have applied a presumption of prejudice to the extrinsic information pursuant to

Remmer v. United States, 347 U.S. 227, 229 (1954). As for the first argument,

the Kansas rule preventing an inquiry into the subjective effect of extrinsic

information on the jury’s deliberations is not contrary to clearly established

federal law. Indeed, our federal rules prevent such an inquiry as well. See Fed.

R. Evid. 606(b); see also United States v. Hornung, 848 F.2d 1040, 1045 (10th

Cir. 1988) (“The court’s questioning of a juror who is the recipient of extraneous

information is limited to the circumstances and nature of the improper contact, as

Fed. R. Evid. 606(b) precludes the court from delving into the subjective effect of

the contact on the juror’s decision-making. Accordingly, an objective test should

be applied in making an assessment of whether the defendant was prejudiced by

the extraneous information.”). As for Petitioner’s second argument, the Kansas

court’s holding that this information was not inherently prejudicial is not contrary
-7-

to clearly established Supreme Court authority, and the Remmer presumption of

prejudice is inapplicable to this state habeas case because it is “a rule of federal

criminal procedure, rather than a rule of federal constitutional law.” Crease v.

McKune, 189 F.3d 1188, 1193 (10th Cir. 1999).

For the foregoing reasons, we conclude that reasonable jurists would not

debate whether the district court’s ruling was correct. We therefore DENY

Petitioner’s request for a certificate of appealability and DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge