Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.rex R. Moore, Jr., Petitioner-appellant, v. Jack Cowley, Respondent-appellee, 931 F.2d 63 (10th Cir. 1991)

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US Court of Appeals for the Tenth Circuit - 931 F.2d 63 (10th Cir. 1991) April 23, 1991

Before STEPHEN H. ANDERSON and TACHA, Circuit Judges, and KANE,*  District Judge.


TACHA, 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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and denying a certificate of probable cause.

On appeal, petitioner argues (1) the district court erred by not holding an evidentiary hearing, (2) the district court erred in admitting hearsay statements allegedly made by the victim regarding antecedent actions of petitioner, under the theory that they were admissible as evidence of state of mind, (3) the district court erred in admitting the dying declaration of the victim, (4) petitioner was denied a fair trial by the introduction without objection of nondeathbed hearsay that the victim denied attempting suicide, (5) petitioner was denied a fair trial by the admission of the state arson investigator's opinion that petitioner murdered his wife, (6) the trial court erred in suggesting to the jury that the petitioner had an obligation to call Dr. Jett as a witness, (7) the trial court erred in admitting prejudicial hearsay on hearsay, which was the discharge summary of Dr. Jett concerning deathbed statements of the victim, (8) petitioner was denied effective assistance of trial counsel, (9) the trial court erred in overruling petitioner's motions for an in camera hearing and to suppress the statements made by petitioner before he received Miranda warnings, (10) the trial court erred in allowing the introduction of evidence without first requiring the state to establish a proper chain of custody and in allowing testimony of a person who had not been listed as a witness prior to trial, (11) the trial court erred in refusing to give instructions upon lesser included offenses, failing to include verdict forms on lesser included offenses and in refusing to give certain other instructions, (12) the trial court erred in overruling petitioner's motion to prevent death certification of the jury, which resulted in a jury more predisposed toward a finding of guilt, and (13) petitioner's sentence was excessive.

For substantially the reasons stated in the district court's thorough, well-reasoned order filed May 16, 1990, we deny a certificate of probable cause. Accordingly, this appeal is DISMISSED.

The mandate shall issue forthwith.


Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3