Heath v. Roberts

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 28, 2005
• Docket: 04-3479
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit

June 28, 2005 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

GLENN A. HEATH,

Petitioner - Appellant, v. No. 04-3479 (D.C. No. 02-CV-3349-JTM) RAY ROBERTS, Warden; (D. Kan.) ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents- Appellees.

ORDER

Before EBEL, McKAY and HENRY, Circuit Judges.

Petitioner-Appellant Glenn A. Heath, proceeding pro se, moves for a

Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) in order to

challenge the district court’s denial of his 28 U.S.C. § 2254 petition for habeas

relief. We DENY the COA and DISMISS Heath’s appeal.

After a jury trial in Kansas state court, Heath was convicted in 1996 of first

degree felony murder and abuse of a child. On direct appeal, the Kansas Supreme

Court held that the offense of child abuse merged with the offense of felony

murder; therefore, to avoid a double jeopardy violation, the court reversed

Heath’s child abuse conviction. State v. Heath, 957 P.2d 449, 461 (Kan. 1998). Heath then filed two state court post-conviction motions, both of which resulted

in an affirmance of his felony murder conviction. Heath v. State, 47 P.3d 430

(Kan. App. May 24, 2002).

In his federal § 2254 petition, Heath alleges that (1) his conviction for

felony murder violated double jeopardy and his due process rights; (2) the trial

court erred by failing to instruct on lesser included offenses; (3) the trial court

erred by admitting expert testimony regarding “battered child syndrome”; (4) the

trial court committed “structural error” by admitting evidence of prior abuse of

victim; (5) Petitioner is entitled to a new trial because of prosecutorial

misconduct; 1 (6) the trial court erred in requiring Petitioner to use two peremptory

strikes to remove two jurors “for cause”; (7) the trial court erred in allowing the

victim’s mother, a witness in the trial, to be present during trial before her

testimony; (8) the trial court erred in admitting Petitioner’s statements to

detectives prior to his arrest; (9) the trial court erred by inaccurately instructing

the jury on the applicable law; and (10) the cumulative errors denied Petitioner a

fair trial. In addition, he argues that the Kansas courts were in error to deny him

1 Specifically, Petitioner alleges prosecutorial misconduct in inquiring into prior instances of abuse and the victim’s prior statements, inquiring into Petitioner’s temper, making other improper statements during closing, and possibly also selectively prosecuting Petitioner but not the victim’s mother. Before this court, he also asserts the prosecutor went so far as to commit “a fraud upon the court.”

-2- post-conviction relief on the basis of prosecutorial misconduct and ineffective

assistance of counsel.

The district court denied Petitioner’s request for an evidentiary hearing and,

after a very thorough review of the issues presented, denied Petitioner’s petition.

Petitioner now seeks a COA. An appeal may not be taken from a denial of a §

2254 petition absent a COA, which may be granted “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c). A petitioner meets this threshold by demonstrating that the issues are

debatable among reasonable jurists, 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, 483-84

(2000) (quotations omitted).

Before this court, Heath realleges similar claims raised below. He also

emphasizes he should have been entitled to an evidentiary hearing on multiple

factual issues, which include whether accidental injuries were used to prove an

intentional injury. After reviewing this case, it is clear Heath simply cannot

establish that reasonable jurists could debate the resolution of this petition or that

these issues deserve further consideration. See Slack, 529 U.S. at 483-84.

Therefore, for substantially the reasons stated by the district court in its

-3- November 5, 2004 and December 20, 2004 orders, we DENY a COA and

DISMISS this appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

-4-