                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       February 1, 2006
                   UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                TENTH CIRCUIT                            Clerk of Court


 WILLIAM GARDNER,

       Petitioner-Appellant,
 v.
                                                       No. 05-2225
 JAMES JANECKA, Warden, Lea                   (D.C. No. CIV-041235 JB/ACT)
 County Correctional Center; and                         (D. N.M.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

       Respondents-Appellees.


                                     ORDER


Before KELLY, LUCERO, and McKAY, Circuit Judges.


      William Ray Gardner, a New Mexico state prisoner proceeding pro se,

requests a certificate of appealability (“COA”) to appeal the denial of his 28

U.S.C. § 2254 petition. For substantially the same reasons set forth by the district

court, we DENY Gardner’s request for a COA and DISMISS.

      Gardner is currently serving a twelve-year sentence for a third degree

felony and two fourth degree felonies, and for being a habitual offender. He

conditioned his no contest plea on his right to appeal the denial of a motion to

suppress evidence allegedly obtained in violation of his Fourth Amendment
rights. The New Mexico Court of Appeals affirmed the trial court’s decision, and

the New Mexico Supreme Court denied certiorari. Gardner’s petition for state

post-conviction relief was also denied. He then filed the instant § 2254 petition

reasserting his Fourth Amendment claim. The district court denied Gardner’s

petition and his subsequent application for COA. He now seeks a COA from this

court. 1

       Under Stone v. Powell, 428 U.S. 465, 482 (1976), “where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim,

the Constitution does not require that a state prisoner be granted federal habeas

corpus relief on the ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” Both the state trial court and court of appeals

applied the appropriate Fourth Amendment standards to Gardner’s argument and

found that the challenged search was reasonable. Under such circumstances, we


       1
         Gardner’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death 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). AEDPA 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 Gardner to
demonstrate “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, 484 (2000) (quotations omitted). Because the
district court denied Gardner a COA, he may not appeal the district court’s
decision absent a grant of a COA by this court.

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are precluded from reviewing the state court decision. See Gamble v. Oklahoma,

583 F.2d 1161, 1165 & n.3 (10th Cir. 1978) (federal courts may review Fourth

Amendment claims in habeas corpus proceedings only where “the state court

wilfully refuses to apply the correct and controlling constitutional standards,”or

where the state court application of the federal standard is “so unconscionable as

to deny a defendant the opportunity for full and fair litigation”). His application

for a COA is therefore DENIED and the appeal is DISMISSED. Gardner’s

motion for appointment of counsel is also DENIED.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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