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

                                                                       May 23, 2006
                   UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court



 M A RK EU G EN E SM ITH ,

       Petitioner – Appellant,
 v.
                                                        No. 06-5039
                                              (D.C. No. 03-CV-233-TCK-FHM )
 DAYTON J. PO PPELL, W arden; and
                                                        (N.D. Okla.)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF O K LA H O MA ,

       Respondents – Appellees.



                       OR DER DENY ING CERTIFICATE
                            OF APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      M ark Smith, a state prisoner proceeding pro se, requests a certificate of

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

habeas petition. For substantially the same reasons set forth by the district court,

we D EN Y a COA and DISM ISS.

      Smith was pulled over as he was driving away from a residence located in

Tulsa County, Oklahoma. Police suspected the residence concealed a

methamphetamine laboratory. Because Smith’s driver’s license was suspended,

the officers asked him to step out of the vehicle. As Smith exited the vehicle,

officers observed a gallon bottle of iodine in the front seat and lye in a shopping
bag. Following a search of the vehicle, officers found several bags containing

tincture of iodine, Ice-O-Heat, lye, and hydrogen peroxide. They also found a

box containing red-stained, wet coffee filters, two sets of stained gloves, and

finished methamphetamine. Smith was arrested, and after being read his M iranda

rights, admitted to police officers that he had purchased the chemicals found in

the vehicle for the purpose of manufacturing methamphetamine with the owner of

the nearby house.

      As a result of these events, Smith was charged with unlawful

manufacturing of methamphetamine, unlawful possession of methamphetamine,

unlaw ful possession of a precursor substance to methamphetamine without a

permit, and driving under a suspended license. Following a jury trial, Smith was

convicted on all counts, and sentenced to thirty two years’ imprisonment. Smith

appealed his convictions and sentence to the Oklahoma Court of Criminal Appeals

(“OCCA”), which reversed his conviction for unlawful possession of a precursor

substance, but affirmed Smith’s remaining convictions. After his partially

successful appeal, Smith remained sentenced to twenty seven years’

imprisonment.

      This § 2254 petition followed. Smith asserts that the (1) the evidence at

trial was insufficient to sustain a conviction for attempted manufacture of

methamphetamine as a matter of law and (2) the state district court failed to

exclude evidence obtained in violation of the Fourth Amendment. The district

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court rejected both claims, and denied Smith’s subsequent request for a COA.

Having failed to secure a COA from that court, Smith now seeks a COA from this

court. 1

       On appeal, Smith reasserts the arguments made before the district court.

W e review Smith’s sufficiency of the evidence challenge only to determine

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). Smith claims he was responsible for only the items found in his vehicle,

and that he w as not responsible for any of the items found in the house. He

insists that because he did not have several items essential for the production of

methamphetamine in his vehicle, he could not have been found guilty of

attempted manufacture by any rational trier of fact. Given Smith’s admission to



       1
         Smith’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath 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) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
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 Smith to show “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. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Smith a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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the arresting officers that he purchased the items found in his car to manufacture

methamphetamine with the owner of the nearby house and the many precursor

ingredients found in Smith’s vehicle, a rational trier of fact easily could have

found the essential elements of the charged offenses. As such, we reject Smith’s

sufficiency challenge.

      Smith also claims that the evidence found in his vehicle should have been

suppressed because he was improperly stopped as he drove away from the

residence. He argues that the officer possessed insufficient evidence to give rise

to a reasonable suspicion that he was engaged in a criminal act. In the state trial

court, Smith was afforded an evidentiary hearing on his motion to suppress and

quash. The state trial court denied the motions. M oreover, throughout the trial,

defense counsel objected to admission of evidence based on arguments asserted in

his motion to suppress. Smith also raised this Fourth Amendment claim on direct

appeal, where it was rejected by the OCCA. Based on this record, Smith has had

a full and fair opportunity to litigate this Fourth Amendment claim in the state

courts. As such, we are precluded from revisiting this Fourth Amendment claim

on habeas. Stone v. Powell, 428 U.S. 465, 494 (1976).

      Smith’s application for a COA is DENIED and the appeal is DISM ISSED.




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Smith’s petition to proceed in forma pauperis is GR ANTED .


                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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