Goldsmith v. Bruce, (10th Cir. 2004)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JACK L. GOLDSMITH,

Petitioner-Appellant,

v.



LOUIS BRUCE; PHILL KLINE,

Attorney General for the State of

Kansas,

Respondents-Appellees.

No. 04-3117

(District of Kansas)

(D.C. No. 03-CV-3154-WEB)

ORDER

Before EBEL,
name="9">MURPHY, and McCONNELL, Circuit Judges.

Proceeding pro se, Jack L. Goldsmith seeks a certificate of appealability

("COA") from this court so he can appeal the district court's denial of his 28 U.S.C. 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Goldsmith has not "made a substantial

showing of the denial of a constitutional right," this court denies his request

for

a COA and dismisses this appeal. Id. § 2253(c)(2).

After a jury trial, Goldsmith was convicted of aggravated kidnapping,

aggravated burglary, aggravated sodomy, and rape. His convictions were

affirmed on direct appeal by the Kansas Court of Appeals in an unpublished

opinion. Goldsmith then filed for post-conviction relief pursuant to Kan. Stat.

Ann. § 60-1507. The state district court denied post-conviction relief and that

decision was affirmed by the Kansas Court of Appeals. The Kansas Supreme

Court denied review.

Goldsmith filed the instant § 2254 habeas petition on April 3, 2003. In his

petition, Goldsmith asserted that the evidence was insufficient to sustain his

convictions; that his counsel was constitutionally ineffective for a myriad of

reasons; and that the prosecution engaged in numerous acts of perjury,

obstruction, and conspiracy. Goldsmith also sought DNA testing. The district

court addressed each claim in turn. Applying the standard set forth in the

Antiterrorism and Effective Death Penalty Act ("AEDPA"), the court concluded

that the Kansas state courts' adjudication of Goldsmith's sufficiency-of-the-evidence claim and

several of his ineffective assistance claims was not contrary

to, nor an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). Accordingly, the district court denied Goldsmith relief on those

claims.

The district court then reviewed de novo the remaining ineffective

assistance of counsel claims and Goldsmith's claims relating to allegations of

prosecutorial misconduct. The court concluded that Goldsmith was not entitled

to relief on any of these claims. Finally, the court denied Goldsmith's request for

DNA testing.

This court cannot grant Goldsmith a COA unless he can 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). In evaluating whether

Goldsmith has carried his burden, this court undertakes "a preliminary, though

not definitive, consideration of the [legal] framework" applicable to each of his

claims. Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003). Goldsmith is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He

must, however, "prove something more than the absence of frivolity or the

existence of mere good faith." Id. (quotations omitted).

This court has reviewed Goldsmith's application for a COA and appellate

brief, the district court's order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that

Goldsmith is not entitled to a COA. The district court's resolution of

Goldsmith's claims is not reasonably subject to debate and the claims are not

adequate to deserve further proceedings. Accordingly, Goldsmith has not "made

a substantial showing of the denial of a constitutional right" and is not entitled to

a COA. 28 U.S.C. § 2253(c)(2).

This court denies Goldsmith's request for a COA and

dismisses this

appeal. All outstanding motions are denied.

Entered for the Court

PATRICK FISHER, Clerk

By:

Deputy Clerk

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