UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTIN JOSEPH ZIMMER,

Petitioner-Appellant,

v.

DAVID R. McKUNE; ATTORNEY GENERAL OF KANSAS,

Respondents-Appellees.	No. 00-3031

(D.C. No. 99-3328-DES)

(D. Kan.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

In 1999, Petitioner-Appellant Martin Joseph Zimmer filed a petition for habeas corpus in the United States District Court for the District of Kansas pursuant to 28 U.S.C. § 2254. The district court denied this petition and declined to grant Mr. Zimmer a Certificate of Appealability ("COA") to pursue these claims on appeal. See 28 U.S.C. § 2253(c). Mr. Zimmer now requests this court to grant a COA and reverse the district court's judgment.

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

Circuit Judge