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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER
Before BRISCOE, EBEL, and McCONNELL,
Circuit Judges.
Petitioner-Appellant Jason Van Dusen requests a certificate of
appealability ("COA"), see 28 U.S.C. § 2253(c), that would enable him to appeal
the district court's decision denying him habeas relief, see 28 U.S.C. § 2254,
from his Oklahoma convictions for first degree rape of a child under fourteen
years of age and rape by instrumentation.(1) In
his habeas petition, Van Dusen first
asserts that his trial attorney was ineffective for waiving the preliminary hearing
and for failing to investigate the case; prepare adequately for trial; call defense
witnesses, including the victim's babysitter, a Department of Human Services
employee, the victim's twelve-year-old sister, a teacher, and Jessica Denton; seek
a psychological expert to evaluate a social worker's interview with the victim;
seek an expert to evaluate the results of several physical examinations of the
victim; call one of the examining physicians as a witness; better cross-examine
the State's witnesses; make an opening statement; and object to the prosecutor's
improper arguments. Van Dusen also asserts that the prosecutor acted improperly
by making inappropriate remarks during voir dire, trial, closing argument, and
sentencing; introducing false testimony; introducing false evidence; suppressing
exculpatory evidence; and threatening to charge the victim's mother if she did
not testify against Van Dusen. Van Dusen further alleged that an undersheriff
eavesdropped on Van Dusen's meetings with his defense attorney; there was
insufficient evidence presented at trial to support either of Van Dusen's
convictions; the trial judge erred in refusing to respond to a question from jurors
during their deliberations; cumulative error warrants habeas relief; and Van
Dusen's appellate counsel was ineffective for failing to raise these arguments on
direct appeal.
Van Dusen will be entitled to a COA if he can make"a substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He can make
such a showing by establishing 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). For substantially the reasons stated in the magistrate judge's report and
recommendation, adopted by the district court, we conclude Van Dusen has failed
to make an adequate showing in this case. We, therefore, DENY his motion for a
COA and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
1.We GRANT Van Dusen's motion to proceed
on appeal in forma pauperis.
See 28 U.S.C. § 1915.
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