                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       January 18, 2006
                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

 NELSON R. LYNCH,

        Petitioner - Appellant,
                                                       No. 05-6229
 vs.                                            (D.C. No. CIV-05–0150-HE)
                                                       (W.D. Okla.)
 TIM O’DELL, Warden,

        Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


       Nelson R. Lynch, an inmate appearing pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his habeas petition

filed pursuant to 28 U.S.C. § 2254. In order to merit a COA, Mr. Lynch must

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

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To make such a

showing, he must demonstrate that reasonable jurists would find the district

court’s resolution of the constitutional issue contained in his motion debatable or

wrong. Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because Mr. Lynch

has not made that showing, we deny a COA and dismiss the appeal.
      Upon negotiated pleas in four separate cases, Mr. Lynch was convicted of

trafficking in illegal drugs, possession of a controlled substance with intent to

distribute (two cases), and unauthorized use of a motor vehicle. He received

fifteen years in each drug case, and ten years in the motor vehicle case. The state

applied to revoke the suspended sentences in all four cases based upon

commission of another offense, possession of a controlled dangerous substance

with intent to distribute. When a jury acquitted Mr. Lynch of this new offense,

the state district court nonetheless revoked the suspended sentences, ordering

them to run concurrently. The Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed. R. Doc. 15 at Ex. 2. Mr. Lynch filed for state post-conviction relief,

which the state district court denied, and the OCCA affirmed the denial. R. Doc.

15, Exs. 4 & 6.

      In his federal habeas petition, Mr. Lynch raised the following grounds: (1)

ineffective assistance of trial and appellate counsel, (2) the evidence was

insufficient to revoke his suspended sentence, (3) the state was collaterally

estopped from relying on the same evidence of which a jury acquitted Mr. Lynch

in order to revoke, (4) the preponderance of the evidence standard for revocation

is unconstitutional, and (5) his sentence was excessive. R. Doc. 1. The

magistrate judge recommended denial of Mr. Lynch’s habeas petition, and after

considering Mr. Lynch’s objections, the district court adopted the magistrate’s


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findings and denied Mr. Lynch habeas relief. In his application for COA, Mr.

Lynch raises only three grounds for relief, (1) there was insufficient evidence to

revoke his suspended sentence, (2) the state was collaterally estopped from using

evidence from his acquittal to revoke his suspended sentence, and (3) his sentence

was excessive. Aplt. Form A-16, at 2.

A. Sufficiency of the Evidence

      Mr. Lynch, on application here, concedes that the applicable standard for

revoking his suspended sentence was a preponderance of the evidence. Pet.

Opening Br. (Part B) at 2; see United States v. Cantley, 130 F.3d 1371, 1376

(10th Cir. 1997) (recognizing Oklahoma’s preponderance of the evidence

standard); Bumgarner v. Middleton, No. 94-7003, 1995 WL 275718, at *2 (10th

Cir. May 10, 1995) (unpublished); Morishita v. Morris, 702 F.2d 207, 210 (10th

Cir. 1983) (probation revocation is based on a “preponderance of the evidence

rather than proof beyond a reasonable doubt”); Fleming v. State, 760 P.2d 206,

207 (Okla. Crim. App. 1988) (proof required to revoke suspended sentence is

preponderance of evidence that accused violated terms of his suspension). The

OCCA held that sufficient evidence supported the revocation. Whether that

holding is reviewed under 28 U.S.C. § 2254(d)(1) or (2), we must uphold that

determination on collateral review because it is neither based on an unreasonable

factual determination in light of evidence presented in the state court proceedings,


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nor is it an unreasonable application of clearly established federal law. Boltz v.

Mullin, 415 F.3d 1215, 1230 (10th Cir. 2005) (noting that Tenth Circuit has not

decided whether a sufficiency of the evidence claim presents a question of law

reviewed under § 2254(d)(1) or a question of fact reviewable under § 2254(d)(2)).

      Here, Officer Query testified he stopped Mr. Lynch because his vehicle had

a severely cracked windshield. R. Doc. 15 at Ex. 11 (Tr. at 8). When the officer

asked Mr. Lynch to produce a driver’s license, Mr. Lynch was unable to do so.

Id. (Tr. at 9). Mr. Lynch was the only occupant of the vehicle. Id. (Tr. at 10).

After verifying that Mr. Lynch had no driver’s license, the officer placed him

under arrest and conducted an inventory search of Mr. Lynch’s vehicle. Id. (Tr. at

11-12). Officer Query testified that he found a small baggie with a white rock in

it under the driver’s seat. Id. (Tr. at 12-14). The white rock tested positive for

cocaine base, or crack. Id. (Tr. at 17; 38-41).

      The magistrate concluded that under Oklahoma law and in light of this

standard, a reasonable fact-finder could conclude that Mr. Lynch possessed

cocaine. We have reviewed the testimony of Officer Query, R. Doc. 13 at Ex. 11,

and find this conclusion is not reasonably debatable. See United States v. Cota-

Meza, 367 F.3d 1218, 1223-24 (10th Cir. 2004) (there was sufficient evidence to

find a driver of a vehicle who denied knowledge of contraband within that vehicle

guilty of possession with intent to distribute), cert. denied, 125 S. Ct. 276 (2004).


                                         -4-
B. Collateral Estoppel

      Mr. Lynch argues that because he was acquitted of possession of a

controlled dangerous substance with intent to distribute, collateral estoppel

prevented the use of the evidence from that trial to revoke his suspended

sentence. The OCCA held that collateral estoppel did not apply because no

adjudication of guilt or innocence occurs upon revocation of a suspended

sentence. Rather, it is merely a determination that a violation of the suspended

sentence has occurred. R. Doc. 15 at Ex. 2 at 2 (citing Moore v. State, 644 P.2d

1079, 1081 (Okla. Crim. App. 1979)).

      To the extent Mr. Lynch is claiming a double jeopardy violation, its lack of

merit is not reasonably debatable. Under Oklahoma law, acquittal of a charge

does not preclude use of the same evidence to revoke a suspended sentence, and

such use does not constitute double jeopardy. See Moore, 644 P.2d at 1080; see

also Morishita, 702 F.2d at 210. The Double Jeopardy clause protects against

subsequent criminal prosecution for the same offense after an acquittal has been

obtained–the revocation proceeding in this case simply is not criminal prosecution

to which Double Jeopardy protections apply. See Gillespie v. Hunter, 159 F.2d

410, 412 (10th Cir. 1947) (probation revocation did not constitute double

jeopardy); see also United States v. Grisanti, 4 F.3d 173, 176 (2d Cir. 1993);

United States v. Hanahan, 798 F.2d 187, 189-90 (7th Cir. 1986); Standlee v.


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Rhay, 557 F.2d 1303, 1305, 1307 (9th Cir. 1977).

C. Excessive Sentence 1

      Sentencing issues are state law questions and are generally not cognizable

on federal habeas review unless it is shown the sentence is “outside the statutory

limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir.

2000); Hawkins v. Hargett, 200 F.3d 1279, 1281 (10th Cir. 1999). Mr. Lynch

does not challenge that his original sentences were within the statutory range.

Upon revocation, Mr. Lynch was to serve all four sentences concurrently,

amounting to a total of only fifteen years on a potential fifty-five year sentence.

Mr. Lynch has failed to show why this sentence is unauthorized by law or outside

the statutory limits. The burden is Mr. Lynch’s. See Dennis, 222 F.3d at 1258.

In addition, we do not fund Mr. Lynch’s sentence grossly disproportionate in

relation to his crimes. See Hawkins, 200 F.3d at 1282. The fact that the court

reinstated his original sentence as the result of a revocation does not amount to a

violation of a constitutional right.

      We DENY Mr. Lynch’s application for a COA and dismiss the appeal.

                                       Entered for the Court




      1
       Mr. Lynch identifies this as a ground for relief in his COA petition, but
makes no mention of it in his Opening Brief. For the sake of completeness, we
assume he intended to make this argument and therefore address it.

                                         -6-
Paul J. Kelly, Jr.
Circuit Judge




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