Both the Kansas state courts and the district court have rejected similar arguments. See Chiles v. State, 869 P.2d 707, 714-18 (Kan.), cert. denied, 513 U.S. 850 (1994); Jones v. Bruce, 921 F. Supp. 708, 710-12 (D. Kan. 1996). We are likewise unpersuaded. Mr. Dial has not shown that his circumstances are similar to those in State v. Fierro, 895 P.2d 186, 189-91 (Kan. 1995), thus, Fierro does not support his position.
We DENY Mr. Dial's Application for a Certificate of Appealability and DISMISS the appeal. All pending motions are denied.
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.