F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 JUL 2 2001
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 JERRY RASNIC, SR.,

          Petitioner-Appellant,
 v.                                                          No. 01-3114
 LOUIS E. BRUCE; CARLA STOVALL,                     (D.C. No. 00-CV-3367-DES)
 Attorney General,                                            (D.Kan.)

          Respondents-Appellees.




                              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.

      Petitioner Jerry Rasnic, Sr., a state prisoner appearing pro se, seeks a certificate



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
of appealability (COA) to challenge the district court's denial of his 28 U.S.C. § 2254

petition for writ of habeas corpus. Because Rasnic has failed to make “a substantial

showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), we deny

his request for a COA and dismiss his appeal.

       In 1990, Rasnic entered a plea of guilty to two counts of aggravated robbery and

one count of aggravated burglary. He was sentenced to terms of imprisonment of

fifteen years to life on each aggravated robbery count and to not less than five years

nor more than twenty years on the aggravated burglary count, with all sentences to run

consecutively. Rasnic did not file a direct appeal. In 1995, he filed a motion for state

habeas relief pursuant to Kan. Stat. Ann. § 60-1507. After conducting an evidentiary

hearing during which Rasnic testified, the state district court denied relief. The Kansas

Court of Appeals subsequently affirmed the denial of relief.

       On October 6, 2000, Rasnic filed his petition for federal habeas relief pursuant

to 28 U.S.C. § 2254. The petition asserted two claims for relief: (1) trial counsel was

ineffective for failing to investigate and prepare a proper defense to the criminal

charges against Rasnic, for failing to prepare and present mitigating evidence at the

sentencing hearing, for failing to file a direct appeal, and for failing to advise Rasnic of

his right to file a direct appeal; and (2) his sentences were constitutionally

disproportionate to those imposed on his co-defendants. The federal district court

denied relief on April 10, 2001, and subsequently denied Rasnic a COA.

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       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a

state prisoner such as Rasnic is not entitled to federal habeas relief unless the state

court adjudication of the merits of his claims “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established” Supreme Court

precedent or “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). In other words, we could grant Rasnic habeas relief only if we were to find

“the state court arrived at a conclusion opposite to that reached by the Supreme Court

on a question of law; decided the case differently than the Supreme Court has on a set

of materially indistinguishable facts; or unreasonably applied the governing legal

principle to the facts of [Rasnic’s] case.” Van Woudenberg v. Gibson, 

,

566 (10th Cir. 2000) (citing Williams v. Taylor, 

, 413 (2000)), cert.

denied, 

(2001).

       Having carefully reviewed the record on appeal, including the state court

records from Rasnic’s criminal proceedings and his subsequent state habeas

proceedings, we are convinced that Rasnic is not entitled to federal habeas relief. In

rejecting Rasnic’s ineffective assistance of counsel claim, the Kansas state courts

concluded that Rasnic failed to satisfy either prong of the standard announced in

Strickland v. Washington, 

, 687 (1984), i.e., deficient performance and

prejudice. Nothing in the record on appeal persuades us that the Kansas courts

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unreasonably applied the Strickland standards to the facts of Rasnic’s case in reaching

this conclusion. As for Rasnic’s assertion that his total sentence was constitutionally

disproportionate to the sentences imposed on his co-defendants, the Kansas courts

noted “there [wa]s a reasonable basis for treating [Rasnic] differently than his co-

defendants.” Record of Kansas Post-Conviction Proceedings, Vol. I at 72. In

particular, the Kansas courts noted that (1) unlike Rasnic, none of his co-defendants

had a prior criminal history, (2) Rasnic “was found by the trial court to be the ‘ring

leader’ of the criminal enterprise,” (3) “[t]hree of the four co-defendants were

[Rasnic’s] sons,” and (4) “[a]ll [of the co-defendants] were much younger than

[Rasnic].” 

in the record on appeal persuades us that the Kansas

courts unreasonably applied governing legal principles in rejecting this claim. Rasnic

has therefore failed to make a “substantial showing of the denial of a constitutional

right” as required by 28 U.S.C. § 2253.

       We DENY Rasnic’s request for a COA and DISMISS this appeal. The mandate

shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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