Brown v. Hannigan

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 16, 1998
• Docket: 98-3043
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 16 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

ROOSEVELT BROWN,

Petitioner-Appellant,

v. No. 98-3043 (D.C. No. 96-CV-3267) ROBERT D. HANNIGAN and (D. Kan.) ATTORNEY GENERAL OF KANSAS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner Roosevelt Brown, appearing pro se, seeks a certificate of

appealability in order to appeal the district court’s denial of his writ of habeas

corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal can be taken from the denial of a § 2254 habeas petition unless the

petitioner first obtains a certificate of appealability).

Petitioner was convicted in Kansas in 1993 for criminal trespass,

aggravated kidnaping and rape. On direct appeal, petitioner’s criminal trespass

conviction was reversed, but his kidnaping and rape convictions were affirmed.

The Kansas Supreme Court denied review, after which petitioner filed this § 2254

petition. His petition claims that he was denied due process when the trial court

allowed the jury to hear a partial rereading of petitioner’s and the victim’s

testimony. Petitioner argues the rereading of testimony was not responsive to the

jury’s request. Petitioner also claims that he was denied due process when the

trial court admitted evidence of a love letter he wrote to the victim while he was

awaiting trial. He claims that the letter was irrelevant and was improperly

introduced to show that he was trying to manipulate the victim.

The district court denied the petition, finding that the alleged errors did not

have a substantial and injurious effect on the jury’s verdict. In a subsequent

order, the district court denied petitioner’s request for a certificate of

appealability.

-2- Whether testimony of a witness shall be reread to a jury during the course

of its deliberations is a matter lying within the sound discretion of the trial court.

See United States v. Brunetti , 615 F.2d 899, 902 (10th Cir.1980). While we have

recognized that rereading of witness testimony to the jury during deliberations is

disfavored because of the potential that the jury might unduly emphasize that

evidence, see United States v. Keys , 899 F.2d 983, 988 (10th Cir. 1990), we find

no abuse in the trial judge’s exercise of its discretion and we agree with the

district court that the alleged error did not have a substantial and injurious effect

or influence in determining the jury’s verdict. See Brecht v. Abrahamson , 507

U.S. 619, 637-38 (1993). We also agree with the district court that the admission

of the love letter did not have a substantial and injurious effect on the jury’s

verdict.

Upon careful review of the record, we conclude that the district court’s

order denying petitioner’s habeas corpus petition is not debatable, reasonably

subject to a different outcome on appeal, or otherwise deserving of further

proceedings. See Gallagher v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994)

(discussing how to make substantial showing of denial of constitutional right).

Thus, we find that petitioner has not made a substantial showing of the denial of a

constitutional right and that the district court properly denied petitioner’s

application for a certificate of appealability. Accordingly, we DENY petitioner’s

-3- request for a certificate of appealability and DISMISS the appeal. The mandate

shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge

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