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

                                                                    November 6, 2006
                      UNITED STATES CO URT O F APPEALS             Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT



 RICH ARD LY NN DOPP,

          Petitioner-A ppellant,
 v.                                                     No. 05-5203
                                               (D.C. No. 02-CV-616-JHP-PJC)
 RON W ARD, Director, Oklahoma                        (N.D. Oklahoma)
 Department of Corrections,

          Respondent-Appellee.



                                      OR DER


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.


      Petitioner-Appellant Richard Lynn Dopp appeals the district court’s order

denying him habeas relief, see 28 U.S.C. § 2254, from his Oklahoma convictions

for trafficking in marijuana, maintaining a residence resorted to by users of a

controlled dangerous substance, and unlawful possession of a firearm. 1 For these




      1
        Dopp previously sought habeas relief under § 2254 as to the same
convictions. His prior § 2254 petition, however, was dismissed without prejudice
based on failure to exhaust state remedies. See Dopp v. Saffle, No. 99-CV-884
(N.D. Okla. Apr. 18, 2001) (unpublished order). Dismissal without prejudice for
failure to exhaust state remedies does not prevent a subsequent habeas petition
under the Antiterrorism and Effective Death Penalty Act (“AEDPA ”). See Slack
v. M cDaniel, 529 U.S. 473, 485-86 (2000); M cW illiams v. Colorado, 121 F.3d
573, 575 (10th Cir. 1997).
convictions, Dopp was sentenced to life imprisonment without parole. On appeal

to this court, Dopp argues that the district court erred in rejecting his claims that

(1) the Oklahoma Court of Criminal Appeals (“OCCA”) failed to provide a full

and fair opportunity to litigate his Fourth Amendment challenge to the search of

his residence; (2) the trial court failed to instruct the jury on the lesser offense of

possession with intent to distribute; (3) the trial court erroneously instructed the

jury that Dopp had stipulated to two prior convictions for purposes of sentence

enhancement; (4) Dopp’s trial counsel was ineffective in failing to object to the

allegedly erroneous jury instructions; and (5) the trial court’s sentence of life in

prison without parole violated Double Jeopardy based on Dopp’s prior payment of

impoundment fees and the loss of a truck seized during the search of his

residence. Dopp also claims that the district court erred by (6) failing to provide

an evidentiary hearing regarding D opp’s ineffective assistance of counsel claims,

and (7) denying his application for a certificate of appealability. Finally, Dopp

asserts that (8) cumulative error analysis should be applied to all of the foregoing

claims.

      To pursue this appeal, Dopp is required to obtain a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1). To be entitled to a COA, Dopp

must make a “substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). Satisfaction of this standard requires establishing that “reasonable

jurists could debate w hether (or for that matter, agree that) the petition should

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have been resolved [by the district court] in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack,

529 U.S. at 484 (quotations omitted). The district court in this case denied

Dopp’s motion for a COA.

      After carefully considering all of Dopp’s arguments, we conclude that he

has failed to demonstrate that he is entitled to a COA. W e therefore DENY Dopp

a COA and DISM ISS this appeal.


                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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