F I L E D
United States Court of Appeals
Tenth Circuit
June 6, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SAMUEL MARION PONDER,
Petitioner - Appellant,
No. 04-6386
v. (D.C. No. CIV-04-1159-C)
(W.D. Okla.)
HASKELL HIGGINS,
Respondent - Appellee.
ORDER
Before EBEL, MCKAY and HENRY, Circuit Judges.
Petitioner-Appellant Samuel Marion Ponder, proceeding pro se, moves for a
Certificate of Appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) in order to
challenge the district court’s denial of his 28 U.S.C. § 2254 petition for habeas
relief. Ponder also moves to proceed in forma pauperis on appeal. We GRANT
Ponder’s motion to proceed in forma pauperis, DENY the COA, and DISMISS
Ponder’s appeal.
After a jury trial in Oklahoma state court, Ponder was convicted in 2002 of
the offense of Trafficking in Illegal Drugs and was sentenced to eleven years’
imprisonment. His conviction was affirmed on direct appeal.
In his § 2254 petition, Ponder alleges that (1) the jury was erroneously
instructed on the proper range of punishment for the drug-trafficking offense; (2)
the trial court violated his Fourth Amendment rights by admitting evidence
obtained in a search of his clothing during a traffic stop; and (3) the prosecution
did not sufficiently establish the chain of custody for the illegal drugs admitted
into evidence at his trial, and his trial counsel provided constitutionally
ineffective assistance by failing to challenge the adequacy of the prosecution’s
proof concerning the chain of custody.
In an accurate and well-reasoned Report and Recommendation, Magistrate
Judge Gary M. Purcell, to whom Ponder’s petition was referred, recommended
that Ponder’s petition be denied. After de novo consideration of Ponder’s
objections to that Report and Recommendation, the district court adopted the
magistrate judge’s recommendation and denied Ponder’s petition. Ponder
appealed the district court’s determination to this court.
In his appeal, Ponder realleges his illegal search and chain-of-custody
arguments. For substantially the reasons stated by Magistrate Judge Purcell in his
October 27, 2004 Report and Recommendation, we DENY Ponder a COA and
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DISMISS his appeal. Ponder simply cannot establish 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,
483-84 (2000) (quotations omitted).
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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