                                                                         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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