* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e 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 distric t court’s denial of his counseled habeas petition, filed pursuant to 28 U.S .C. § 2254. Under the provisions of the Antiterrorism and Effective DeathPenalty 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 faili ng to 1) request a self-defense instruction, 2) object to testimony by Detective Al len 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 anot her 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, alo ng 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 denyin g 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 ap peal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge