Van Dusen v. Sirmons

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

JA SO N V A N D U SEN ,

Petitioner-A ppellant,
v.
No. 06-6376
(D.C. No. CIV-06-295-M )
M AR TY SIRM ON S, W arden; DR EW
(W .D. Okla.)
EDM ONDSO N, Attorney General of
the State of Oklahoma,

Respondents-Appellees.

OR DER

Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.

Petitioner-A ppellant 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 w itnesses,

including the victim’s babysitter, a Department of Human Services employee, the

1
W e GRANT Van Dusen’s motion to proceed on appeal in forma pauperis.
See 28 U.S.C. § 1915.
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 w itnesses; 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 V an 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 w hether (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

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proceed further.” Slack v. M cDaniel, 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. W e, therefore, DENY his motion for a

COA and DISM ISS this appeal.

ENTERED FOR THE COURT

David M . Ebel
Circuit Judge

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