White v. Booher , 35 F. App'x 823 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 23 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE MARK WHITE,
Petitioner - Appellant,
No. 02-7007
v. (D.C. No. 00-CV-406-S)
(Eastern District of Oklahoma)
GLYNN BOOHER,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, 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 case is before the court on George White’s pro se request for a
certificate of appealability (“COA”). White seeks a COA so that he can appeal
*
This order and judgment is not binding precedent, except under the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.
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See
28 U.S.C. § 2253(c)(1)(A). Because White has not “made a substantial showing
of the denial of a constitutional right,” this court denies his request for a COA
and dismisses this appeal. Id. § 2253(c)(2).
White was convicted in Oklahoma state court of Attempting to Manufacture
a Controlled Dangerous Substance (methamphetamine). After exhausting his state
remedies, White filed the instant § 2254 habeas petition raising the following four
claims: (1) his conviction was not supported by sufficient evidence; (2) his trial
was rendered fundamentally unfair because the state court denied his motion to
sever his trial from the trial of his co-defendant; (3) the state court erred in
refusing to suppress the fruits of a traffic stop of his truck; and (4) the state court
erred in refusing to suppress the fruits of an inventory search of the truck. In a
thorough and well-stated order, the district court addressed the sufficiency of the
evidence and severance questions on the merits and determined that the decision
of the Oklahoma Court of Criminal Appeals denying relief as to these issues was
neither contrary to nor an unreasonable application of Supreme Court precedent.
See id. § 2254(d). As to White’s claims regarding the seizure and search of his
truck, the district court reviewed the record and determined that White had been
afforded an opportunity to fully and fairly litigate these Fourth Amendment
claims in Oklahoma state court. Accordingly, White was barred from obtaining
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habeas relief on these grounds under the decision of the Supreme Court in Stone
v. Powell, 428 U.S. 465 (1976).
This court may issue White a COA only if he “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can
make such a showing by demonstrating “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation omitted). This court has closely reviewed White’s application for a
COA and appellate brief, the district court’s order, and the entire record on
appeal. That review demonstrates that the district court’s resolution of White’s
petition is not reasonably debatable and that the issues he seeks to present on
appeal are not deserving of further proceedings. Accordingly, we DENY White’s
request for a COA and DISMISS this appeal for substantially those reasons set
out in the district court’s order dated December 27, 2001. White’s request to
proceed on appeal in forma pauperis is GRANTED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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