F I L E D
United States Court of Appeals
Tenth Circuit
May 23, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
M A RK EU G EN E SM ITH ,
Petitioner – Appellant,
v.
No. 06-5039
(D.C. No. 03-CV-233-TCK-FHM )
DAYTON J. PO PPELL, W arden; and
(N.D. Okla.)
A TTO RN EY G EN ER AL O F THE
STA TE OF O K LA H O MA ,
Respondents – Appellees.
OR DER DENY ING CERTIFICATE
OF APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
M ark Smith, a state prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254
habeas petition. For substantially the same reasons set forth by the district court,
we D EN Y a COA and DISM ISS.
Smith was pulled over as he was driving away from a residence located in
Tulsa County, Oklahoma. Police suspected the residence concealed a
methamphetamine laboratory. Because Smith’s driver’s license was suspended,
the officers asked him to step out of the vehicle. As Smith exited the vehicle,
officers observed a gallon bottle of iodine in the front seat and lye in a shopping
bag. Following a search of the vehicle, officers found several bags containing
tincture of iodine, Ice-O-Heat, lye, and hydrogen peroxide. They also found a
box containing red-stained, wet coffee filters, two sets of stained gloves, and
finished methamphetamine. Smith was arrested, and after being read his M iranda
rights, admitted to police officers that he had purchased the chemicals found in
the vehicle for the purpose of manufacturing methamphetamine with the owner of
the nearby house.
As a result of these events, Smith was charged with unlawful
manufacturing of methamphetamine, unlawful possession of methamphetamine,
unlaw ful possession of a precursor substance to methamphetamine without a
permit, and driving under a suspended license. Following a jury trial, Smith was
convicted on all counts, and sentenced to thirty two years’ imprisonment. Smith
appealed his convictions and sentence to the Oklahoma Court of Criminal Appeals
(“OCCA”), which reversed his conviction for unlawful possession of a precursor
substance, but affirmed Smith’s remaining convictions. After his partially
successful appeal, Smith remained sentenced to twenty seven years’
imprisonment.
This § 2254 petition followed. Smith asserts that the (1) the evidence at
trial was insufficient to sustain a conviction for attempted manufacture of
methamphetamine as a matter of law and (2) the state district court failed to
exclude evidence obtained in violation of the Fourth Amendment. The district
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court rejected both claims, and denied Smith’s subsequent request for a COA.
Having failed to secure a COA from that court, Smith now seeks a COA from this
court. 1
On appeal, Smith reasserts the arguments made before the district court.
W e review Smith’s sufficiency of the evidence challenge only to determine
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). Smith claims he was responsible for only the items found in his vehicle,
and that he w as not responsible for any of the items found in the house. He
insists that because he did not have several items essential for the production of
methamphetamine in his vehicle, he could not have been found guilty of
attempted manufacture by any rational trier of fact. Given Smith’s admission to
1
Smith’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A ). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Smith to show “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. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Smith a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.
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the arresting officers that he purchased the items found in his car to manufacture
methamphetamine with the owner of the nearby house and the many precursor
ingredients found in Smith’s vehicle, a rational trier of fact easily could have
found the essential elements of the charged offenses. As such, we reject Smith’s
sufficiency challenge.
Smith also claims that the evidence found in his vehicle should have been
suppressed because he was improperly stopped as he drove away from the
residence. He argues that the officer possessed insufficient evidence to give rise
to a reasonable suspicion that he was engaged in a criminal act. In the state trial
court, Smith was afforded an evidentiary hearing on his motion to suppress and
quash. The state trial court denied the motions. M oreover, throughout the trial,
defense counsel objected to admission of evidence based on arguments asserted in
his motion to suppress. Smith also raised this Fourth Amendment claim on direct
appeal, where it was rejected by the OCCA. Based on this record, Smith has had
a full and fair opportunity to litigate this Fourth Amendment claim in the state
courts. As such, we are precluded from revisiting this Fourth Amendment claim
on habeas. Stone v. Powell, 428 U.S. 465, 494 (1976).
Smith’s application for a COA is DENIED and the appeal is DISM ISSED.
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Smith’s petition to proceed in forma pauperis is GR ANTED .
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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