F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN KERRY HARP,
Petitioner-Appellant,
v. No. 97-6007
(D.C. No. 96-CV-774)
EDWARD L. EVANS; ATTORNEY (W.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is ordered
submitted without oral argument.
Petitioner Steven Kerry Harp appeals the judgment of the district court denying his
petition for habeas corpus relief under 28 U.S.C. § 2254. He challenges his state
convictions for possession of marijuana with intent to distribute, and possession of
marijuana without a tax stamp, contending they were based on evidence seized in
*
This order and judgment is not binding precedent, except under the doctrines of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.
violation of the Fourth Amendment. Specifically, he argues the police believed he had
drugs in his car, but lacked reasonable suspicion or probable cause for a stop or search for
drugs and used a traffic violation as a pretext to stop his car to search for drugs. We deny
petitioner a certificate of appealability and dismiss the appeal.
Under 28 U.S.C. § 2253, a provision of the Antiterrorism and Effective Death
Penalty Act, an appeal may not be taken to the court of appeals from a final order in §
2254 proceedings unless the petitioner has obtained a certificate of appealability by
making a substantial showing of the denial of a constitutional right. Here, petitioner has
not made such a showing.
Fourth Amendment exclusionary rule claims are not cognizable in federal habeas
corpus proceedings if the petitioner had an opportunity for full and fair litigation of the
claim in state court. Stone v. Powell, 428 U.S. 465 (1976). Petitioner had that
opportunity and used it fully. Petitioner raised the Fourth Amendment issue in state court
in a motion to suppress. After an evidentiary hearing and extensive oral argument, the
state trial court resolved conflicting evidence and found the police had probable cause to
stop and arrest petitioner for driving while under the influence and that the stop was not a
pretext for a search for drugs. Petitioner raised the issue on appeal to the Oklahoma
Court of Criminal Appeals, but the court rejected his arguments and affirmed his
convictions.
We DENY petitioner a certificate of appealability and DISMISS the appeal. The
mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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