* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 14 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TERRY L. HEDGER,

Petitioner-Appellant,

v.

DAVID MCKUNE, Warden, Lansing

Correctional Facility; ATTORNEY

GENERAL OF KANSAS,

Respondents-Appellees.

No. 00-3165

(D.C. No. 97-3118-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Petitioner was convicted of second degree murder of his wife following a

shooting incident at their home. 

-2-

Petitioner Terry L. Hedger appeals from the district court’s denial of his

counseled habeas petition, filed pursuant to 28 U.S.C. § 2254. Under the

provisions of the Antiterrorism and Effective Death Penalty Act, petitioner must

obtain a certificate of appealability (COA) before his appeal can proceed before

this court. See Slack v. McDaniel , 529 U.S. 473, 478 (2000); 28 U.S.C.

§ 2253(c)(1)(A). Because the district court denied petitioner’s motion for a COA,

petitioner must demonstrate “a substantial showing of the denial of a

constitutional right” before a COA can issue. 28 U.S.C. § 2253(c)(2). 

In his habeas application before the district court, petitioner asserted four

claims of ineffective assistance of counsel in connection with his criminal trial. 1

He contended that counsel was ineffective for failing to 1) request a self-defense

instruction, 2) object to testimony by Detective Allen concerning an overheard

conversation between petitioner and his attorney, 3) investigate the availability of

additional witnesses to events before the shooting, and 4) object to certain

statements and declarations made by his wife. The district court rejected these

issues on the merits. On appeal, he has abandoned the ineffective assistance of

counsel claim based on counsel’s alleged failure to adequately investigate the

availability of additional witnesses, but adds another claim of error, contending
-3-

that the district court erred in failing to hold an evidentiary hearing on the claim

concerning Detective Allen’s testimony. 

Our review of petitioner’s appellate arguments, along with the record on

appeal, including decisions of the state appellate court and the district court, in

light of the applicable law convinces us that, for the substantially the reasons

stated by the district court in its decision denying habeas relief, petitioner has not

“made a substantial showing of the denial of a constitutional right.” Id.

Petitioner’s motion for a COA is DENIED and this appeal is DISMISSED. 

Entered for the Court

Michael R. Murphy 

Circuit Judge