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ENTERED FOR THE COURT

Patrick Fisher, Clerk of Court

By: Keith Nelson

Deputy Clerk

Petitioner raises five issues on appeal: (1) sufficiency of the evidence supporting his convictions of robbery and criminal deprivation of property in Kansas state court; (2) prosecutorial misconduct for making comments directed at the defendant's credibility; (3) constitutional sufficiency of a jury instruction characterizing the state's burden of proof and the presumption of innocence; (4) constitutional sufficiency of a jury instruction referring to the state's burden to prove each of its "claims" rather than the "elements of the offense"; (5) ineffective assistance of appellate counsel for failing to raise claims (2), (3), and (4) on direct appeal.

We first note that the District Court of Mitchell County, Kansas, considering Petitioner's collateral attack under K.S.A. 60-1057 appears to have addressed all of Petitioner's claims on the merits, despite the fact that claims (2), (3), and (4) were not raised on direct appeal. The Kansas Court of Appeals summarily affirmed the lower court's disposition. Accordingly, the petitioner is not faced with either procedural bar or exhaustion obstacles. See Harris v. Reed, 489 U.S. 255, 263 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.") (quotations and citations omitted).

Nevertheless, upon review of the record and the relevant case 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.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

^*. 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 This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

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