F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 11 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BRIAN K. BURKHOLDER,
Petitioner-Appellant,
v. No. 03-3259
(D.C. No. 02-CV-3275-JWL)
L.E. BRUCE; ATTORNEY (D. Kan.)
GENERAL OF THE STATE OF
KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.
After examining the briefs and 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); 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This order and judgment is not binding precedent, except under the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.
Petitioner-appellant, proceeding pro se , appeals the district court’s order
denying his petition for habeas corpus relief under 28 U.S.C. § 2254. The district
court granted a certificate of appealability to consider whether the state trial court
had violated petitioner’s Sixth Amendment rights (1) by denying petitioner’s
motion to substitute counsel the day before his trial for burglary and theft, or (2)
by denying his motion in the alternative to proceed pro se in that trial.
Petitioner alleges that the state trial court abused its discretion by finding
his request to substitute counsel on the eve of trial untimely and by not making
further inquiry into why he had requested new counsel. Petitioner also asserts
that the district court committed reversible error when it determined that he was
not competent to represent himself because he was illiterate and admitted that he
did not understand the charges against him. We affirm the denial of petitioner’s
petition for a writ of habeas corpus for substantially the reasons stated by the
district court.
We review a district court’s conclusions of law de novo and its findings of
fact, if any, for clear error. LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir.
1999). Under 28 U.S.C. § 2254(d)(1)-(2), no writ of habeas corpus shall issue
unless the decision of the state court either was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or . . . was based on an unreasonable
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determination of the facts in light of the evidence presented in the State court
proceeding.”
Having reviewed the briefs, the record, and the standards applicable to
petitions for a writ of habeas corpus, we hold that petitioner has raised no ground
for a writ to issue in this case. Accordingly, we AFFIRM the denial of a writ of
habeas corpus for substantially the reasons stated by the district court.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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