                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                        UNITED STATES COURT OF APPEALS                  November 15, 2010

                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court



 JAMES WILLIAM LOVELACE,

           Petitioner–Appellant,

 v.                                                          No. 10-7072
                                                (D.C. No. 6:07-CV-00224-RAW-KEW)
 BRUCE HOWARD, Warden,                                       (E.D. Okla.)

           Defendant–Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       James Lovelace, a state prisoner proceeding pro se,1 seeks a certificate of

appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254

habeas petition. We determine that Lovelace is not entitled to a COA and dismiss the

appeal on that basis.




       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
        We liberally construe Lovelace’s pleadings because he proceeds pro se. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                              I

       On April 10, 1999, a LeFlore County, Oklahoma, Deputy Sheriff asked David

Hope, a Heavener, Oklahoma, police officer, to investigate a suspicious vehicle parked at

a rural home outside Heavener. The officer overtook the car, driven by Lovelace, on a

road near the home. Because Lovelace was driving with a suspended license, Hope

arrested him and patted him down before handcuffing him and putting him in the back

seat of the patrol car. That pat-down uncovered a knife and a syringe. About forty-five

minutes later, a county Deputy Sheriff arrived on the scene. The deputy searched Officer

Hope’s patrol car, finding a vial wrapped in black tape under the back seat. It was

ultimately confirmed to contain methamphetamine. The officers also searched Lovelace

more thoroughly, and found two more syringes. One of the syringes later tested positive

for the presence of methamphetamine.

       Lovelace was tried and convicted of methamphetamine possession in Oklahoma

state court. After unsuccessfully pursuing state direct appeal and collateral review, he

filed a § 2254 petition in federal court, alleging: (1) insufficient evidence; (2) unlawful

search; (3) unlawful arrest; (4) excessive sentence; and (5) ineffective assistance of

appellate counsel. The district court denied habeas relief and denied Lovelace’s request

for a COA. Lovelace now seeks a COA to appeal only the sufficiency of the evidence

and ineffective assistance determinations.



                                             -2-
                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, Lovelace must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the [§ 2254]

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, 484 (2000) (quotations omitted). To prevail on his § 2254 habeas petition, Lovelace

must show the state court’s adjudication of his claim either “resulted in a decision that

was based on an unreasonable determination of the facts in light of the evidence

presented” or was “contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1), (2).

                                             A

       Lovelace’s first argument is that there was insufficient evidence to support his

conviction. On appeal, evidence will only be determined insufficient if no “rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt”

when viewing the evidence “in the light most favorable to the prosecution.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

       Lovelace argues “there is absolutely NO connection” between him and the

methamphetamine found during his arrest. He explains that he was searched before being

placed in the patrol car, but the vial of drugs was only found much later on the floor of

                                            -3-
the patrol car, and at least one other arrestee had been in the patrol car the day of his

arrest. Perhaps Lovelace’s contention would hold water if the officers arresting him had

not also found a syringe containing methamphetamine in his pocket. The statute under

which he was convicted has no minimum threshold amount for possession—it prohibits

possessing any methamphetamine. See Okla. Stat. tit. 63, § 2-402; see also Spriggs v.

State, 511 P.2d 1139, 1143 (Okla. Crim. App. 1973) (“[P]ossession of a modicum of an

illegal drug is sufficient to bring the defendant within the purview of the statute.”

(quotation omitted)). And evidence that the syringe contained methamphetamine was

presented to the jury. We need not inquire into the vial evidence Lovelace disputes,

because a rational trier of fact could have found the syringe evidence sufficient to prove

possession beyond a reasonable doubt.

                                              B

       Before trial, Lovelace’s counsel filed a motion seeking to test the vial of

methamphetamine found in the patrol car. The trial court did not rule on the motion until

Lovelace’s counsel reminded the court about the motion on the day of trial. The court

denied the motion and counsel did not object. Lovelace contends this was ineffective

assistance, and that his appellate counsel’s failure to argue as much was itself ineffective

assistance.

       Counsel provides ineffective assistance when his representation does not meet “an

objective standard of reasonableness” and “there is a reasonable probability that, but for

                                             -4-
counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Lovelace’s entire

ineffective assistance claim relates to the vial of methamphetamine. But, as discussed

above, he was also found in possession of methamphetamine in one of the syringes.

Regardless of trial counsel’s actions with respect to the vial, the syringe evidence would

have been before the jury. There is no reasonable probability that the trial would have

resulted in a different outcome, and thus there was no prejudice.

                                            III

       Regarding both the sufficiency of evidence claim and the ineffective assistance of

counsel claim, reasonable jurists could not debate whether the district court should have

resolved Lovelace’s § 2254 petition differently. Cf. Slack, 529 U.S. at 484. We

therefore DENY a COA and DISMISS the appeal. Because Lovelace has failed to

advance “a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we

DENY his motion to proceed in forma pauperis.



                                                        Entered for the Court



                                                        Carlos F. Lucero
                                                        Circuit Judge
                                           -5-
