F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 18, 2007
                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court


 SC OTT ELSTO N ,

               Petitioner - A ppellant,
                                                          No. 06-3404
          v.                                                 Kansas
 RO Y R OB ERTS; ATTO RN EY                      (D.C. No. 06-CV-3093-JTM )
 GEN ERAL O F KANSAS,

               Respondents - Appellees.



                  OR D ER D EN YING LEAVE TO PROCEED
                      ON APPEAL IN FORM A PAUPERIS,
               D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                       A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in 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.

      Scott Elston, a state inmate appearing pro se, 1 filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition


      1
       W e liberally construe Elston’s pro se pleadings. See Ledbetter v. City of
Topeka, Kan., 

, 1187 (10th Cir. 2003).
and his subsequent requests for a certificate of appealability (COA) and to

proceed in form a pauperis (ifp) on appeal. Elston renew s his application for a

COA with this Court, as well as his request to proceed ifp. Because Elston has

failed to make “a substantial showing of the denial of a constitutional right,” see

28 U.S.C. § 2253(c)(2), we deny a COA and dismiss his application. W e also

deny his request to proceed ifp.

        On June 23, 2001, Elston was arrested for aggravated robbery in Lawrence,

Kansas. He was arraigned on July 11, 2001, and the case was set for trial on

September 4, 2001. On August 29, 2001, Elston’s case was assigned to Judge

Adrian Allen, an out-of-district judge, because all of the district judges had

recused themselves. 2 Two days later, Judge Allen conducted a teleconference

with the attorneys. At that conference, the trial date was reset to October 17,

2001.

        On the morning of October 17, 2001, Elston filed a motion to dismiss for

violation of his right to a speedy trial under the Sixth Amendment of the United

States Constitution, § 10 of the Kansas Bill of Rights and K AN . S TAT . A NN . § 22-

3402. Judge Allen granted the motion and dismissed the case. The State

immediately filed a notice of appeal, followed by a motion to reconsider. The

next day, Judge Allen granted the motion to reconsider. On November 26, 2001,



        2
       The district judges recused themselves because after his arrest, Elston
married a non-judicial district court employee.

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Elston entered a plea of no contest to aggravated robbery. On M ay 1, 2002, he

was sentenced to 100 months imprisonment. He did not file a direct appeal.

      On February 13, 2003, Elston filed a petition for post-conviction relief in

state court alleging he was denied his right to a speedy trial in violation of the

Sixth Amendment of the United States Constitution, § 10 of the Kansas Bill of

Rights and K AN . S TAT . A NN . § 22-3402. Counsel was appointed to represent

Elston. In addition to alleging a violation of Elston’s speedy trial rights, counsel

argued Judge Allen lacked jurisdiction to reconsider his October 17, 2001

dismissal order. On August 4, 2004, Judge Allen denied Elston’s post-conviction

petition. The Kansas Court of Appeals affirmed on October 21, 2005, and the

Kansas Supreme Court denied review on February 14, 2006.

      On M arch 28, 2006, Elston filed a petition for writ of habeas corpus under

28 U.S.C. § 2254 in the United States District Court for the District of Kansas.

He alleged (1) his right to a speedy trial under the Sixth Amendment and K AN .

S TAT . A NN . § 22-3402 was violated and (2) Judge Allen lacked jurisdiction to

reconsider his O ctober 17, 2001 dismissal order (a matter of state law). On

November 16, 2006, the district court denied Elston’s § 2254 petition, finding his

Sixth Amendment right to a speedy trial was not violated and his alleged

violations of state law were not cognizable under § 2254. See Elston v. Robert,

No. 06-3093-JTM , 2006 W L 3337504 (D. Kan. Nov. 16, 2006).

      Unless we issue a CO A, Elston may not appeal the denial of his § 2254

                                          -3-
petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the issuance of a

COA only where a petitioner has made a substantial showing of the denial of a

constitutional right.” M iller-El v. Cockrell, 

, 336 (2003) (quotations

omitted). To make the requisite showing, a petitioner must demonstrate “that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” 

“W hen the

district court denies a habeas petition on procedural grounds . . ., a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. M cDaniel, 

, 484

(2000).

      W ith these principles in mind, we have carefully reviewed the record and

the district court’s order. W e agree Elston’s state law claims are not cognizable

in a § 2254 action. See 28 U.S.C. § 2254(a) (stating a court “shall entertain” a

§ 2254 petition “only on the ground that [the state prisoner] is in custody in

violation of the Constitution or laws or treatises of the United States”) (emphasis

added); Estelle v. M cGuire, 

, 67-68 (1991) (“[I]t is not the province of

a federal habeas court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is limited to deciding

                                         -4-
whether a conviction violated the Constitution, laws, or treaties of the United

States.”).

      W e also agree Elston’s Sixth Amendment right to a speedy trial was not

violated. W hether a defendant’s Sixth Amendment right to a speedy trial has been

violated requires us to balance (1) the length of the delay, (2) the reason for the

delay, (3) whether the defendant asserted his right to a speedy trial and (4)

whether the delay prejudiced the defendant. Barker v. Wingo, 

, 530-

32 (1972). “The length of the delay is to some extent a triggering mechanism.

Until there is some delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.” 

Here,

approximately five months passed from the time of Elston’s arrest to his plea of

no contest and four months from his arrest to his October 17, 2001 trial date. See

United States v. Batie, 

, 1290 (10th Cir.) (“The length of delay is

measured from the time at which the speedy trial right attaches: the earlier of

either arrest or indictment.”), cert. denied, 

(2006). These delays

are not presumptively prejudicial. See United States v. Dirden, 

,

1138 (10th Cir. 1994) (seven and one-half month delay between arraignment and

trial not presumptively prejudicial). Even considering the remaining Barker

factors, they do not favor Elston. The reason for the delay was not chargeable to

the State. Rather, it was due to Elston’s post-arrest marriage to a district court

employee, which required the case to be assigned to an out-of-district judge.

                                          -5-
M oreover, while Elston could have asserted his right to a speedy trial at the

conference setting the case for trial on October 17, 2001, he w aited until the first

day of trial to raise it. Lastly, there is no evidence Elston was prejudiced by the

delay.

         W e D EN Y Elston’s request for a COA and DISM ISS the application.

Because Elston has not shown “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal,” his

motion to proceed ifp on appeal is DENIED. DeBardeleben v. Quinlan, 

, 505 (10th Cir. 1991). He is directed to remit the full amount of the filing fee

within twenty days from the date of this order.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




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