Dunlap v. Zavara, No. 10-1422 (10th Cir. 2011)
Annotate this CaseIn 1995, Petitioner-Appellant Nathan Dunlap was convicted of two counts of second-degree kidnapping, aggravated robbery, and theft relating to a 1993 armed robbery at a Burger King restaurant. For this, he was sentenced to 75 years' imprisonment. This conviction was later used as a statutory aggravator in the penalty phase of Petitioner's trial involving the murders of four people at a Chuck E. Cheese restaurant. Petitioner applied for but was denied habeas relief in connection with the Burger King robbery. On appeal, Petitioner argued that the state court erred in: (1) rejecting his motion for a change of venue because the pretrial publicity about the Chuck E. Cheese case presumptively or actually prejudiced his ability to obtain a fair trial; and (2) rejecting his claim that the prosecution's closing argument constituted improper vouching which rendered his trial fundamentally unfair. After careful consideration of the parties' arguments, the trial court record and the applicable legal authority, the Tenth Circuit affirmed the district court's denial of habeas relief, finding that the trial court "correctly focused on the empaneled jury and the careful procedures employed by the trial judge to ensure an impartial jury" and that the court instructed the jury not to consider arguments made by counsel as evidence.
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