                                                                            F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             MAR 5 2003

                                TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


 BILL DEAN CARTER,

          Petitioner - Appellant,
                                                        No. 02-6235
 v.                                               (D.C. No. 01-CV-1820-H)
                                                      (W.D. Oklahoma)
 RONALD J. WARD,

          Respondent - Appellee.



                          ORDER AND JUDGMENT *


Before TACHA, Chief Judge, SEYMOUR and EBEL, Circuit Judges.



      Bill Dean Carter, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition and its denial of

his certificate of appealability (COA). Because Mr. Carter has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), we deny his request for a COA and dismiss the appeal.




      *
       This order and judgment is not binding precedent, except under the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.
      Mr. Carter was convicted of manufacturing methamphetamine, sentenced to

twenty years in prison, and fined $50,000.00. He unsuccessfully challenged his

conviction on direct appeal and in a petition for state post-conviction relief. In

his federal habeas corpus petition, Mr. Carter asserts his trial and appellate

counsel were ineffective in four respects: failure to assert the denial of a speedy

trial, failure to call a specific witness, failure to designate his first preliminary

hearing transcript in the record on appeal, and failure to note a conflict of interest

of trial counsel. Mr. Carter also contends his conviction was based on evidence

obtained as a result of an unconstitutional seizure, the trial court erred in denying

his request for identification of a confidential informant, insufficient evidence

existed to support his conviction, and the fine of $50,000.00 was excessive.

      In its report and recommendation to the district court, the magistrate judge

addressed each of Mr. Carter’s claims on the merits and concluded that none

warranted relief. The district court adopted the magistrate’s report and denied

Mr. Carter’s petition and request for a COA. Mr. Carter appealed.

      In order to obtain a COA after a district court has rejected a petitioner’s

constitutional claims on the merits, the petitioner must demonstrate “that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 2003 WL 431659, *4


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(U.S. Feb. 25, 2003). See also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Based on our review of Mr. Carter’s brief, the entire record on appeal, and the

magistrate judge’s thorough and well reasoned report and recommendation, we

hold that Mr. Carter has not satisfied the standard for COA and therefore we

dismiss his appeal. Only two claims require further comment.

      First, we take issue with Mr. Carter’s assertion that his right to a speedy

trial was violated by the ineffective assistance of his trial counsel. Under

Strickland v. Washington, 466 U.S. 668, 687 (1984), Mr. Carter must show his

trial counsel’s performance was both deficient and prejudicial. As the magistrate

judge correctly reasoned, Mr. Carter failed to satisfy Strickland.

      It is true that the period of time between the filing of the information

against Mr. Carter and his trial was substantial, totaling twenty-three months. Mr.

Carter was arrested and charged on July 1, 1997, but his case did not go to trial

until June 14, 1999. Mr. Carter specifically contends that the decision of his trial

counsel, Ms. Cox, to request and conduct a second preliminary hearing, interfered

with his right to a speedy trial. We are not persuaded.

      Mr. Carter’s first preliminary hearing had been conducted in March 1998

by an attorney other than Ms. Cox. In her representation of Mr. Carter, Ms. Cox

requested in a March 1999 hearing that the court grant a second preliminary




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hearing. 1 When the court specifically questioned Mr. Carter to determine whether

he approved of the delay, Mr. Carter answered affirmatively. While Ms. Cox’s

request for a second preliminary hearing did extend Mr. Carter’s trial date, the

request did not make her representation deficient. Ms. Cox was not present at the

first preliminary hearing and it is apparent from the record that she believed a

second hearing would provide her the opportunity to examine witnesses and

develop additional evidence necessary to substantiate a motion to the dismiss the

case against Mr. Carter. Not only did Ms. Cox have sufficient grounds to request

the second hearing, but Mr. Carter acquiesced in the request. Nor has Mr. Carter

shown he was prejudiced by Ms. Cox’s request for the second hearing. Therefore,

the district court correctly denied this claim. 2

      We also address Mr. Carter’s claim that his conviction was based on

evidence obtained as a result of an unconstitutional seizure. Mr. Carter alleges


      1
        In February 1999, the trial court had previously granted Ms. Cox’s request
for a continuance of Mr. Carter’s trial to await the conclusion of a separate trial
in which Mr. Carter was a defendant. Such a request was entirely reasonable.
See Castro v. Ward, 138 F.3d 810, 819-20 (10th Cir. 1998) (right to speedy trial
not violated where defendant’s trial delayed until conclusion of second trial in
which defendant was charged).
      2
       We further note that on June 11, 1999, after the trial court denied Mr.
Carter’s motion to dismiss, Mr. Carter requested that his trial be further
continued. His request was denied, and trial proceeded on June 14, 1999. In light
of Mr. Carter’s own request for a continuance, as well as his affirmation of Ms.
Cox’s petition for a second preliminary hearing, his claim of a denial of his right
to a speedy trial rings hollow.

                                           -4-
that the police lacked probable cause to stop and question him and therefore that

his subsequent arrest and the search of his vehicle were unconstitutional. In so

arguing, Mr. Carter overlooks the essential fact that the police did not “stop” him.

      Mr. Carter was arrested in the course of an undercover police investigation

of drug activity at a specific business location. Officers were engaging in

consensual conversations with individuals who entered the business’ parking lot

and parked their cars there. The officers did the same with Mr. Carter after he

stopped his car in the parking lot. There is nothing unlawful about such police

activity. See United States v. Mendenhall, 446 U.S. 551, 554-55 (1980) (in the

absence of evidence indicating a citizen believed he was not free to depart from

an officer’s presence, “otherwise inoffensive contact between a member of the

public and the police cannot, as a matter of law, amount to a seizure of that

person”). It was only after the officers observed a weapon in Mr. Carter’s vehicle

and smelled strong chemicals associated with methamphetamine manufacturing

that the officers placed Mr. Carter under investigative detention and discovered

the materials used to manufacture methamphetamine. The officer’s actions were

entirely reasonable and did not violate Mr. Carter’s Fourth Amendment rights.




                                         -5-
      For these reasons, coupled with our conclusion that the district court’s

denial of Mr. Carter’s petition was neither debatable nor adequate to encourage us

to proceed further, we DENY Mr. Carter’s application for a COA and DISMISS

this appeal.

                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




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