|MARTIN JOSEPH ZIMMER,||No. 00-3031
(D.C. No. 99-3328-DES)
Mr. Zimmer presents two main issues to this court. His first allegation is that there was insufficient evidence to support his convictions of robbery and criminal deprivation of property in Kansas state court. His second argument is that his appellate counsel was constitutionally ineffective for failing to raise three additional grounds on direct appeal: (1) prosecutorial misconduct for making comments directed at the defendant's credibility; (2) a constitutionally defective jury instruction improperly characterizing the state's burden of proof and the presumption of innocence; (3) a constitutionally defective jury instruction for referring to the necessity that the state prove each of its "claims" rather than the "elements of the offense."(1)
Upon review of the record and the relevant law, we conclude that Mr. Zimmer has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Accordingly, we decline to grant a COA. See id.
ENTERED FOR THE COURT
David M. Ebel
*.After examining appellant's brief and the 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)(2) and 10th Cir. R. 34.1(G). 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 This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
1. Mr. Zimmer summarily states that the Kansas Court of Appeals did rule on the merits of these additional grounds on direct appeal. We have reviewed Mr. Zimmer's brief on direct appeal as well as the Court of Appeals' opinion dismissing his appeal. It does not appear that the Court of Appeals was presented with, nor did it address these claims.