Atkinson v. McKune , 44 F. App'x 459 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
CARL STANLEY ATKINSON,
Petitioner-Appellant, No. 02-3134
v. (D.C. No. 00-CV-3106)
DAVID McKUNE, (D. Kansas)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the 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 is a pro se § 2254 prisoner appeal. Mr. Atkinson was convicted of
aggravated burglary, theft, kidnaping, obstruction of legal process, and
aggravated battery against a law enforcement officer. He was sentenced to 130
*
This order and judgment is not binding precedent, except under the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.
months’ imprisonment. His conviction and sentence were affirmed on direct
appeal, and the state supreme court denied further review. In his federal habeas
petition, Mr. Atkinson claimed due process violation, failure to give jury
instruction on the reliability of eyewitness testimony, and failure to give lesser
included offense instruction of criminal restraint on the kidnapping charge. The
district court denied the petition on the merits and declined to grant him a
certificate of appealability. Petitioner then applied to this court for a certificate
of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner 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) (quotations omitted).
We have carefully reviewed Mr. Atkinson’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s brief raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
district court in its Order of April 4, 2002, we cannot say that “reasonable jurists
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could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner.” Id. We DENY Petitioner’s request for a
certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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