Herron v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 8 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ERIC PAUL HERRON,
Petitioner - Appellant,
v. No. 01-6301
(D.C. No. 00-CV-1135-M)
GARY L. GIBSON, (W.D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL , HOLLOWAY , 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.
Eric Paul Herron, a state prisoner appearing pro se , seeks a certificate of
appealability (COA) in order to appeal the district court’s denial of his 28 U.S.C.
*
This order and judgment is not binding precedent, except under the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.
§ 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A). Because
petitioner 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).
Petitioner was convicted in Oklahoma state court of rape, burglary, and
robbery. Although he raised numerous claims in his § 2254 petition, he raises
only one in his application for COA. He contends the state trial judge should
have suppressed evidence he claims was gathered while he was in custody
because the state held him in custody for more than forty-eight hours without a
probable cause hearing, in contravention of the Supreme Court’s holding in
County of Riverside v. McLaughlin , 500 U.S. 44 (1991). Petitioner raised this
Fourth Amendment suppression of evidence issue on direct appeal to the
Oklahoma Court of Criminal Appeals.
Because petitioner had a full and fair opportunity to litigate this issue in
state court, the magistrate judge concluded that petitioner’s Fourth Amendment
claim was barred from consideration pursuant to Stone v. Powell , 428 U.S. 465,
494 (1976) (holding that a Fourth Amendment claim is barred from federal
collateral attack in habeas proceedings where the state has provided an
opportunity for full and fair litigation of those claims). Upon de novo review of
the magistrate judge’s report and recommendation and petitioner’s objections
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thereto, the district court adopted the report and recommendation and denied the
§ 2254 habeas petition.
This court may issue petitioner 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 petitioner’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
petitioner’s suppression of evidence claim is not reasonably debatable and that the
issues he seeks to present on appeal are not deserving of further proceedings.
Accordingly, we DENY petitioner’s request for a COA and DISMISS this
appeal for substantially those reasons set out in the magistrate judge’s report and
recommendation dated June 28, 2001, as adopted by the district court’s order
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dated July 27, 2001. Petitioner’s request to proceed on appeal in forma pauperis
is GRANTED. The mandate shall issue forthwith.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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