Pratt v. Nelson ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID ROYCE PRATT,
Petitioner-Appellant,
v. No. 03-3130
(D.C. No. 99-CV-3321-SAC)
MIKE NELSON, Warden; (D. Kan.)
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
David Royce Pratt appeals from the denial of his habeas corpus petition
brought under 28 U.S.C. § 2254. Mr. Pratt was convicted after a bench trial of
two counts of aggravated burglary, aggravated criminal sodomy, rape, attempted
rape, two counts of aggravated kidnaping, two counts of aggravated robbery, and
two counts of aggravated battery arising from two separate crime sprees. He was
sentenced to two consecutive life sentences for the aggravated kidnapings as well
as to several concurrent sentences for the remaining convictions. The Kansas
Supreme Court affirmed his convictions and sentences on direct appeal.
Subsequently, the Kansas Court of Appeals also affirmed the denial of his state
application for post-conviction relief, and the Kansas Supreme Court denied
review. Having exhausted his state-court remedies, Mr. Pratt then filed a petition
for a writ of habeas corpus in the United States District Court for the District of
Kansas. The court did not conduct an evidentiary hearing, basing its decision
solely on the state-court record.
Following the district court’s denial of his habeas petition, Mr. Pratt filed
the instant appeal in this court. We granted a certificate of appealability (COA)
on the issue of whether Mr. Pratt had received constitutionally ineffective
assistance of trial and appellate counsel. With respect to these issues, Mr. Pratt
claims that (1) counsel failed to seek suppression of Mr. Pratt’s custodial
statement; (2) counsel failed to request a jury trial or to adequately explain the
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right to a jury trial to him; (3) counsel failed to seek suppression of DNA and
other evidence; and (4) appellate counsel failed to argue these issues and others
on direct appeal. In its memorandum and order denying relief, the district court
applied 28 U.S.C. § 2254(d)(1) and (2) in its review of the state court’s rulings.
We agree with the district court’s conclusions and AFFIRM the denial of Mr.
Pratt’s habeas petition.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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