                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 3 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    LARNELL LEE DYKES,

                Petitioner-Appellant,
                                                         No. 00-3331
    v.
                                                  (D.C. No. CV-97-3147-DES)
    MICHAEL NELSON, Warden, EDCF;
    ATTORNEY GENERAL OF                                   (D. Kansas)
    KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON and KELLY , Circuit Judges.




         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 This order and judgment is not binding precedent, except under the doctrines of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 Larnell Lee Dykes was convicted of aggravated burglary,

aggravated robbery, aggravated kidnaping, and rape, and was sentenced to a term

of imprisonment on each count. He filed a petition for federal habeas relief under

28 U.S.C. § 2254, arguing issues which were specifically raised before, and

addressed by, the state courts and are, therefore, exhausted. The magistrate judge

recommended that relief be denied. Petitioner did not file any objections to the

magistrate judge’s report. The district court noted that no objections had been

filed, adopted the magistrate judge’s report and recommendation, and denied

relief. 1

        The district court denied petitioner the required certificate of appealability.

See 28 U.S.C. § 2253(c)(1). Petitioner therefore seeks a certificate of

appealability in this court. “A certificate of appealability may issue . . . only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Petitioner may make this showing by

demonstrating that the issues he raises are debatable among jurists, a court could




1
 Ordinarily, when a petitioner fails to object to a magistrate judge’s report, we
deem his issues waived on appeal.    Moore v. United States , 950 F.2d 656, 659
(10th Cir. 1991). Petitioner alleges he failed to receive a copy of the magistrate
judge’s report. We are unable to confirm from the record whether in fact he
received the report or not. In the interests of justice, we assume that petitioner
did not receive the magistrate judge’s report and we address the merits of his
appeal.

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resolve the issues differently, or that the questions presented deserve further

proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).

       Petitioner argues that: (1) he was denied his Sixth Amendment right to

confront and cross-examine the witnesses against him and his Fourteenth

Amendment right to due process when the state court overruled defense counsel’s

motion for discovery regarding the database which the Federal Bureau of

Investigation used to compile the statistics that the odds against finding a DNA

match similar to petitioner’s and the crime sample were six million to one; and (2)

he was denied his Sixth Amendment right to the effective assistance of counsel by

trial counsel’s failure to request a bill of particulars, and he was denied his

Fourteenth Amendment right to due process by the state court’s failure to hold an

evidentiary hearing to determine the validity of this claim.

       Because petitioner’s claims were fully adjudicated on their merits by the

Kansas state courts, we must accord those decisions deference and may only grant

him habeas relief if he “can establish that the state court determination of [his]

claims was contrary to, or an unreasonable application of, clearly established

Supreme Court precedent, or was an unreasonable determination of the facts in

light of the evidence.”   Romano v. Gibson , 239 F.3d 1156, 1163 (10th Cir. 2001)

(citing 28 U.S.C. §§ 2254(d)(1) and (2)).




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       We have fully considered petitioner’s arguments in light of the record on

appeal, including a careful review of the state court opinions in this case, which

thoroughly addressed petitioner’s arguments. With respect to his argument

concerning the DNA database, the Kansas Supreme Court noted, among other

things, that petitioner’s discovery motion was in fact granted in part; that the

population data used in this case was the same data routinely used in virtually all

criminal cases; that petitioner’s claim that he had substantial Cherokee genealogy

was speculative and based solely upon his mother’s assertion that she had an

unknown percentage of Cherokee blood; that petitioner could have confronted and

cross-examined the state’s expert about the effect of comparing himself to others

with Native American heritage, but the record revealed he simply failed to do so;

and that, because the donors used to compile the database were anonymous, the

FBI could not have complied with petitioner’s request. The magistrate judge

discussed those state court conclusions in its rejection of petitioner’s argument on

this point.

       With respect to his ineffective assistance of counsel claim stemming from

his counsel’s failure to request a bill of particulars, the magistrate judge quoted

extensively from the Kansas Court of Appeals’ decision addressing this claim,

which noted that, while petitioner argues his counsel may have missed several

possible defenses by failing to request a bill of particulars, petitioner’s only


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defense was that he had been wrongly identified by the victim and by the DNA

evidence. The state court explained that counsel’s conduct amounted to the

making of strategic trial choices, and that, given the overwhelming evidence

against petitioner, he could, in any event, establish no prejudice from counsel’s

conduct. Finally, with respect to his claim of error from the lack of an

evidentiary hearing, the state court held that petitioner supported his claim of

error with “only speculative comments on possible different outcomes if his

counsel had requested a bill of particulars.” Mem. Op. at 5.

       In sum, under the applicable standard of review, we deny a certificate of

appealability for substantially the same reasons as those set forth in the magistrate

judge’s thorough and well-reasoned report and recommendation, as adopted by the

district court.

       Appellant’s application for a certificate of appealability is denied. The

appeal is DISMISSED. The mandate shall issue forthwith.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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