974 F. 2d 1345 - Bruner v. Roberts

This is an appeal from the denial of a petition filed by a state prisoner for a writ of habeas corpus under 28 U.S.C. § 2254. Before us also is an application for a certificate of probable cause and a motion for leave to proceed on appeal without prepayment of costs. The application and the motion are GRANTED, but the judgment of the district court is AFFIRMED.

John Danile Bruner is presently serving a sentence of life without parole in Kansas for the murder of his wife. His conviction was affirmed on direct appeal by the state courts, and he has proceeded, by collateral attack, to challenge his conviction on the ground that he was denied effective assistance of counsel. Having exhausted his state remedies without success, he turned to the United States District Court for the District of Kansas.

After reviewing the record, including a transcript of an evidentiary hearing conducted by the state court into the issue, the district court concluded Mr. Bruner was not denied his right to counsel guaranteed by the Sixth Amendment. We have reviewed the same records as well as the briefs of both parties and come to the same conclusion.

Petitioner's basic position is that his state trial counsel was ineffective because he failed to call certain witnesses who could have rebutted key evidence presented by the state. Our review of the testimony confirms the findings made by the district court on these claims, and we conclude that those findings were not clearly erroneous. Indeed, they were absolutely correct. We therefore AFFIRM the judgment of the district court on the grounds set forth in its memorandum and order of January 6, 1992.