Mahoney

MEMORANDUM **

Petitioner Vern Kills On Top appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . The district court granted a certifícate of appealability for two claims: (1) a claim it held was procedurally defaulted and (2) a cumulative error claim it denied on the merits. We reverse the procedural default holding. We affirm the denial of the cumulative error claim. And we deny Petitioner’s request for a certificate of appealability for a third claim.

Because the facts are known to the parties, we revisit them only as necessary. See also Kills On Top v. State, 279 Mont. 384 , 928 P.2d 182, 193-98 (1996) (“Kills On Top II”).

I. Procedural Default

At trial, defense counsel moved for a mistrial because the bailiff and a deputy clerk were wearing “Take a Bite Out of Crime” badges. The court denied the motion, but granted the State’s request that the badges be removed.

Citing no legal authority, Petitioner claimed in his direct appeal that the “open display of partiality during the defense of the case communicated a message to the jury” and required reversal of his conviction. The Montana Supreme Court held “that beyond a reasonable doubt these…