                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 23 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    RAYMUNDO ROMERO,

                  Petitioner - Appellant,
                                                          No. 02-6058
    v.                                               D.C. No. CIV-01-864-R
                                                       (W.D. Oklahoma)
    LENORA JORDAN, Warden,

                  Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner-Appellant Raymundo Romero appeals from the district court’s

order denying his petition for a writ of habeas corpus. In order for Mr. Romero to

proceed on appeal, we must grant him a certificate of appealability (COA).

28 U.S.C. § 2253(c)(1)(A). A COA will only issue “if the applicant has made a

substantial showing of the denial of a constitutional right.”    Id. § 2253(c)(2).

Upon consideration, we deny a COA and dismiss this appeal.

       Mr. Romero makes two basic arguments in support of his entitlement to a

COA. First, he argues that       Stone v. Powell , 428 U.S. 465 (1976) does not bar

consideration of his Fourth Amendment claims on habeas review. Second, he

contends that he raised a Fifth Amendment-based claim under         Miranda v.

Arizona , 384 U.S. 436 (1966) that was not barred by       Stone and should have been

considered by the district court.

       1. Fourth Amendment claims

       Mr. Romero raises numerous Fourth Amendment claims relating to his

arrest and the search of his pickup truck that resulted in the discovery and seizure

of a large quantity of methamphetamine. The district court concluded that these

claims were barred from federal habeas review        .

       Mr. Romero correctly notes that       Stone only bars Fourth Amendment claims

on state habeas where the state courts have provided “an opportunity for full and

fair litigation” of the claim.    Stone , 428 U.S. at 494. He contends that he was not


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provided such an opportunity, because the state court trial judge’s comments

indicate that he failed to review the last few minutes of the videotape of

Mr. Romero’s arrest.

       The trial judge made his comments about his review of the videotape at the

beginning of Mr. Romero’s trial. Counsel indicated he had a copy of the

videotape and would present it later in the trial if he felt the omission was

important. He never did. Under the circumstances, Mr. Romero fails to show that

he did not have a full and fair opportunity to litigate his Fourth Amendment

claims before the state trial court.

       Mr. Romero also raised his Fourth Amendment issues on appeal. He does

not argue that he was unable to present the videotape or his argument that it had

not been fully reviewed to the Oklahoma Court of Criminal Appeals (OCCA). In

fact, the videotape was made part of the appellate record before the OCCA, which

considered and rejected his Fourth Amendment claims in an adequate written

decision. Under the circumstances, he fails to demonstrate that he was denied a

full and fair opportunity to litigate his Fourth Amendment claims in the state trial

and appellate courts.   See Cannon v. Gibson , 259 F.3d 1253, 1262 (10th Cir.

2001) (enforcing Stone bar where defendant was offered opportunity to

supplement direct appeal record with materials allegedly omitted at district court

suppression hearing),   cert. denied , 122 S. Ct. 1966 (2002).


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       2. Miranda challenge

       Mr. Romero also complains that the district court reached an erroneous

conclusion concerning his     Miranda challenge. He first disagrees with the district

court’s conclusion that he did not raise a       Miranda challenge in the state courts.   1



Although his counsel waived a      Miranda challenge at trial,     see Trial Tr. at 4,

Mr. Romero argued on direct appeal to the OCCA that he should have been given

a Miranda warning before consent to search was requested. R., doc. 2,

attachment 1 at 10-11. The OCCA did not procedurally bar this argument. We

conclude that the argument was presented in state court and is not barred by state

procedural bar or for failure to exhaust.    2



       We next consider whether      Stone bars the assertion of Mr. Romero’s

Miranda argument. As a general rule,         Stone does not apply to Fifth Amendment

Miranda -based challenges.      See Withrow v. Williams , 507 U.S. 680, 683 (1993).

Here, however, the Miranda argument is raised as part of Mr. Romero’s             Fourth

1
        The district court’s specific statement was that Mr. Romero did not make a
Fifth Amendment-based Miranda challenge in the state courts. As will be seen,
this statement is technically correct, because Mr. Romero’s   Miranda challenge is
in reality a Fourth Amendment challenge.
2
       The district court also stated the   Miranda argument was waived because it
had not been raised in Mr. Romero’s federal habeas petition. Out of an
abundance of caution, we will read the pro se petition to raise a       Miranda
argument. The petition states that Mr. Romero was denied “due process” when the
state failed to prove that his consent to search was voluntary. Also, Mr. Romero
submitted as an attachment to the petition a state brief containing the     Miranda
argument.

                                             -4-
Amendment challenge. In essence, he argues that his consent to search was

involuntary because it was obtained in violation of      Miranda . 3

       Simply put, the real issue Mr. Romero raises here is voluntary consent to

search (a Fourth Amendment issue) rather than self-incrimination (a Fifth

Amendment issue).     See United States v. Smith      , 3 F.3d 1088, 1098 (7th Cir. 1993)

(“[C]onsent to search is not a self-incriminating statement and, therefore, a

request to search does not amount to interrogation.”). Therefore, although

denominated a Miranda claim, the claim is barred by         Stone . Cf. Tukes v. Dugger ,

911 F.2d 508, 513 (11th Cir. 1990) (applying       Stone to bar Sixth Amendment

claim of invocation of right to counsel, where real thrust of claim was consent to

search under Fourth Amendment).




3
       On direct review from a federal conviction, defendants have sometimes
argued that they were not read their    Miranda rights prior to executing a consent to
search. In such cases, we have treated the    Miranda issue as one factor in
determining whether the consent given was voluntary.       See, e.g., United States v.
Dozal , 173 F.3d 787, 796 (10th Cir. 1999). On federal habeas review of a state
conviction, however, Stone bars such Miranda -based challenges, which are really
nothing more than Fourth Amendment claims in disguise.

                                            -5-
     3. Conclusion

     Mr. Romero has failed to show his entitlement to a COA. We therefore

DENY COA and DISMISS his appeal.



                                               Entered for the Court



                                               Robert H. Henry
                                               Circuit Judge




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