FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 5, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 NOAH J. GLEASON,

              Petitioner - Appellant,                   No. 12-3212
       v.                                               (D. Kansas)
 DAVID R. MCKUNE; DEREK                       (D.C. No. 5:11-CV-03110-SAC)
 SCHMIDT, Attorney General of the
 State of Kansas,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.


      Applicant Noah J. Gleason, a Kansas prisoner, applied pro se for relief

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

Kansas. The district court denied his application. He now seeks a certificate of

appealability (COA) from this court to allow him to appeal the district court’s

decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of

§ 2254 relief). We deny the application for a COA and dismiss the appeal.

I.    BACKGROUND

      In 2002 Applicant was convicted in Kansas state court on one count of

felony murder and was sentenced to life imprisonment. See State v. Gleason,

, 225–26 (Kan. 2004). The Kansas Supreme Court affirmed his
conviction and sentence. See 

Kansas Court of Appeals twice

affirmed the denial of his motions for postconviction relief, see Gleason v. State,

, 

(Kan. App. Aug. 10, 2007) (unpublished table

decision); Gleason v. State, 

, 

(Kan. App. Sept.

24, 2010) (unpublished table decision); on each occasion the Kansas Supreme

Court denied review.

      Applicant then filed his § 2254 application raising 11 claims of violations

of his rights to due process and a fair trial under the United States Constitution:

(1) trial counsel was ineffective in numerous respects; (2) the trial court gave an

aiding-and-abetting instruction that misstated Kansas law; (3) the prosecutor used

a theory of the crime in prosecuting him that was inconsistent with the theory

used in prosecuting his codefendants; (4) the prosecutor introduced false evidence

of Applicant’s confession and made a false statement in argument to the jury; (5)

the prosecutor introduced evidence of Applicant’s past crimes in violation of a

trial-court order; (6) the prosecutor did not disclose to the jury the terms of the

plea of a codefendant; (7) the prosecutor and law-enforcement officers withheld

evidence; (8) the district court failed to hold adequate pre- and post-trial

evidentiary hearings; (9) appellate counsel was ineffective; (10) law-enforcement

officers violated Miranda in obtaining his confession; and (11) the trial court

gave a presumption-of-intent instruction, which was inconsistent with its




                                         -2-
presumption-of-innocence instruction. The district court denied relief. Applicant

raises the first seven claims in his application for a COA.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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, 

,

484 (2000) (internal quotation marks omitted). In other words, “[w]here a district

court has rejected the constitutional claims on the merits,” the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” 

court resolves the petition on

procedural grounds, the applicant’s burden is even greater; he must also show

“that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” 

Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

                                         -3-
United States,” or “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)(1), (2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 

, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” 

quotation

marks omitted). Thus, a federal court “may not issue a habeas writ simply

because [it] conclude[s] in [its] independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” 

omitted). Rather, that application must have been

unreasonable. See 

of state court decisions

must be incorporated into our consideration of a habeas petitioner’s request for

COA.” Dockins v. Hines, 

, 938 (10th Cir. 2004) (footnote omitted).

      To obtain federal habeas relief, a state prisoner must “exhaust[ ] the

remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “The

exhaustion requirement is satisfied if the issues have been properly presented to


                                         -4-
the highest state court, either by direct review of the conviction or in a

postconviction attack.” Brown v. Shanks, 

, 1124 (10th Cir. 1999)

(internal quotation marks omitted). The burden of proving exhaustion rests with

the prisoner. See Olson v. McKune, 

, 95 (10th Cir. 1993). If an

applicant has failed to exhaust state remedies and state courts “would now find

the claims procedurally barred[,] the claims are considered exhausted and

procedurally defaulted for purposes of federal habeas relief.” Thomas v. Gibson,

, 1221 (10th Cir. 2000) (internal quotation marks omitted).

      A.     Ineffective Assistance of Trial Counsel

      Applicant raises two claims of ineffective assistance of counsel. First, he

contends that trial counsel was ineffective because he failed to investigate the

case adequately and did not raise various objections. The district court ruled that

the Kansas courts reasonably decided that counsel’s performance was not

deficient. Second, Applicant argues that trial counsel was ineffective because he

had two conflicts of interest: (1) he was a state prosecutor in another county and

(2) he represented Applicant at sentencing after Applicant had argued to the

district court that his counsel was ineffective. The Supreme Court of Kansas

rejected both arguments. It ruled that trial counsel did not have an actual conflict

of interest despite his role as an assistant county attorney in another county

during the first two months that he represented Applicant. See 

. And it concluded that the second alleged conflict did not adversely affect

                                          -5-
trial counsel’s performance. See 

district court determined that

these rulings were reasonable. No reasonable jurist would reject the court’s

denial of these claims.

      B.     Aiding-and-Abetting Instruction

      Applicant argues that the trial court’s aiding-and-abetting instruction

misstated Kansas law and that the jury should have been given a foreseeability

instruction with the aiding-and-abetting instruction. The Kansas Supreme Court

rejected these arguments. See 

district court correctly

determined that Applicant could not challenge on federal habeas a state court’s

interpretation of state law, see Estelle v. McGuire, 

, 67–68 (1991),

and that the instruction did not deprive Applicant of a fair trial. No reasonable

jurist would debate the court’s denial of this claim.

      C.     Inconsistent Theories of Prosecution

      Applicant asserts that the federal district court, as well as the state courts,

have not understood this claim. In his brief to this court he states it as follows:

            Petitioner challenges whether it was a violation of his due
      process right to be charged and convicted of burglary as the
      underlying felony of felony murder when the death occurred during
      the commission of an aggravated burglary committed by a
      codefendant. The State’s theory at trial was that Collin Cady (co-
      defendant) killed Clarence Rinke while in the commission of a
      burglary in which defendant was a participant. The State amends the
      felony murder charge against Cady to second degree murder
      unintentional; aggravated burglary; and aggravated battery. Co-
      defendant was charged in the aggravated burglary charge, “to-wit:
      Clarance [sic] Rinke’s residence, in which there is a human being.”

                                         -6-
Aplt. Br. at 13. Apparently, Applicant is complaining that the predicate felony

for his felony-murder conviction was burglary yet his codefendant was permitted

to plead to aggravated burglary. Perhaps this claim was misunderstood because it

is so clearly without merit. There is nothing unfair about permitting cooperating

codefendants to plead to charges that are inconsistent with the theory upon which

the defendant was convicted by a jury; and here the inconsistency, if any, is

insubstantial. No reasonable jurist would debate the propriety of the district

court’s dismissal of this claim.

      D.     False Statement and Introduction of a False Confession

      Applicant contends that the prosecutor engaged in misconduct by making a

false statement to the jury and introducing into evidence a false confession. The

state court of appeals dismissed this claim, which was asserted in Applicant’s first

state collateral attack on his conviction, because Applicant had not shown

exceptional circumstances excusing his failure to raise it on direct appeal. See

Gleason, 

, at *3; Kan. Sup. Ct. R. 183(c)(3) (permitting post-

conviction correction of trial errors affecting constitutional rights only upon

showing of “exceptional circumstances”). The federal district court concluded

that it could not review the claim because it was procedurally barred. See

Coleman v. Thompson, 

, 750 (1991) (“In all cases in which a state

prisoner has defaulted his federal claims in state court pursuant to an independent

and adequate state procedural rule, federal habeas review of the claims is barred

                                         -7-
unless the prisoner can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law . . . .”). Applicant appears to

concede procedural default, but argues that he could overcome it because his

appellate counsel was ineffective in not raising the issue on direct appeal. See 

error that constitutes ineffective assistance of counsel is

cause . . . .”). But Applicant did not adequately raise below a claim of ineffective

appellate counsel. Even after the State argued in federal district court that the

claim of ineffective appellate counsel was too conclusory to justify relief,

Applicant did not address the issue in his traverse, and the district court quite

naturally, and properly, agreed with the State. We therefore reject Applicant’s

attempt to overcome his procedural default. Reasonable jurists would not debate

the correctness of the district court’s procedural ruling.

      E.     Introduction of Evidence of Past Crimes

      Applicant argues that the prosecutor engaged in misconduct by introducing

evidence of his past crimes, in violation of one of the trial court’s orders. The

Kansas Supreme Court determined that any prosecutorial misconduct in

introducing the evidence was not prejudicial because (1) the trial judge sustained

an objection to the evidence and admonished the jury to disregard it and (2) the

evidence of Applicant’s guilt was so overwhelming that there was no likelihood

that any error changed the trial’s result. See 

. The




                                          -8-
district court concluded that the Kansas Supreme Court’s decision was

reasonable. Reasonable jurists would not debate the court’s resolution.

       F.    Terms of Plea Agreement

       Applicant argues that his due-process rights under Brady v. Maryland, 

(1963), were violated because the State failed to disclose to defense

counsel the terms of his codefendants’ plea agreements. But, as the federal

district court noted, both codefendants who testified against him had admitted at

trial that they had entered into plea agreements with the prosecution. We fail to

see a Brady violation; and no reasonable jurist would disagree with the district

court that Applicant has failed to show prejudice from any nondisclosure.

       G.    Withholding Evidence

       Applicant argues that the State withheld evidence of telephone records

subpoenaed in 1999 that would have aided his defense. 1 The state court of

appeals ruled that there was no prejudice because Applicant received copies of the

identical records before trial, and the records were incriminatory, not exculpatory.

No reasonable jurist would dispute the district court’s conclusion that the court of

appeals’ decision was not unreasonable.

III.   CONCLUSION

       1
        This argument appears in the portion of the Applicant’s brief asserting
ineffective assistance of counsel. He argues that the prosecutor’s actions in
withholding the evidence violated his right to effective assistance of counsel
under Strickland. Despite Applicant’s label, this is in substance a prosecutorial-
misconduct claim, and we treat it as such.

                                        -9-
We DENY the application for COA and DISMISS the appeal.

                            ENTERED FOR THE COURT


                            Harris L Hartz
                            Circuit Judge




                             -10-