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Todd Deal v. Sam Cline

May 10, 2011

TODD DEAL, PETITIONER - APPELLANT,
v.
SAM CLINE, WARDEN, HUTCHINSON CORRECTIONAL FACILITY; STEPHEN SIX, ATTORNEY GENERAL, STATE OF KANSAS, RESPONDENTS - APPELLEES.



(D.C. No. 05:08-CV-03162-WEB) (D. Kan.)

The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge

United States Court of Appeals Tenth Circuit

Elisabeth A. Shumaker Clerk of Court

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL

Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

Todd Deal, a Kansas state prisoner, wants to appeal from the district court's denial of his 28 U.S.C. § 2254 habeas petition. His habeas petition was based upon myriad claims of constitutional violations. The district court denied both his petition and a Certificate of Appealability (COA). Because the district court's decision is not debatable or wrong, we deny his request for a COA.

I.BACKGROUND

In early 1999, Deal was convicted of first degree premeditated murder and sentenced to life imprisonment with eligibility for parole after 25 years. The Kansas Supreme Court affirmed his conviction.*fn1 See State v. Deal, 23 P.3d 840 (Kan. 2001).

Deal then applied for a state writ of habeas corpus pursuant to Kan. Stat. Ann. § 60-1507, claiming ineffective assistance of counsel. The trial court denied his petition, the Kansas Court of Appeals affirmed, and the Kansas Supreme Court denied review.*fn2 See Deal v. State, 110 P.3d 1053 (Kan. Ct. App. 2005).

Deal then brought this federal habeas action claiming (in his words):

1. Violation of the Fifth and Fourteenth Amendments resulting from the denial of his request for a mistrial after the State played a videotape for the jury in which it showed Deal refusing a polygraph examination when questioned by police;

2. Violation of the Fifth and Fourteenth Amendments flowing from the denial of Deal's request to play for the jury a videotaped interview made by police of the person Deal contended committed the murder;

3. Violation of the Fifth and Fourteenth Amendments by allowing the introduction of overwhelmingly prejudicial and irrelevant evidence, specifically, a gruesome photograph of the victim;

4. Violation of the Fifth and Fourteenth Amendments due to the refusal to instruct the jury on the crime of "aiding a felon" as a defense, as that was the only crime for which he could be ...


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