                                                                            FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS               August 25, 2008
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 PATRICK ALAN THOMPSON,

                 Petitioner-Appellant,                 No. 08-3038
          v.                                            (D. of Kan.)
 DAVID R. McKUNE, Warden,                      (D.C. No. 07-CV-3115-JTM)
 Lansing Correctional Facility;
 ATTORNEY GENERAL OF
 KANSAS,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Patrick Alan Thompson was convicted in Kansas state court of aggravated

burglary, theft, and driving with a suspended or revoked license, and his

conviction was affirmed on appeal. Proceeding pro se, 1 Thompson seeks a

      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Thompson proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
                                                                    (continued...)
certificate of appealability (COA) to challenge the district court’s denial of

habeas corpus relief under 28 U.S.C. § 2254. In support of his petition, he argues

the following: (1) the trial court erroneously denied his motion to suppress

evidence, (2) insufficient evidence exists to support his conviction for aggravated

burglary, (3) the trial court erred in computing his sentence, (4) the trial court

erred by not submitting to the jury the question of whether he had prior

convictions, and (5) his sentence is unconstitutional under Cunningham v.

California, 549 U.S. 270 (2007).

      For substantially the same reasons provided by the district court, we

conclude Thompson is not entitled to relief on any claim. We therefore DENY

his request for a COA.

                                 I. BACKGROUND

      At about one in the morning, Officer Gregory Turney noticed a Ford Escort

traveling without illuminated headlights. Turney conducted a traffic stop and

questioned the driver, Thompson. Because Thompson behaved suspiciously and

admitted he did not own the car, Turney believed he had stolen it. Turney and

another officer checked the car’s registration and confirmed it was stolen.

      Thompson was charged with aggravated burglary, theft, and driving with a

suspended or revoked license. A jury convicted him on all three counts.

      1
       (...continued)
935 F.2d 1106, 1110 (10th Cir. 1991).


                                          -2-
Thompson appealed his sentence and conviction, the Kansas Court of Appeals

affirmed, and the Kansas Supreme Court denied review. He also unsuccessfully

sought state habeas relief. Thompson then filed a habeas petition in federal court.

After the court denied him relief, he filed this timely petition for a COA.

                                 II. DISCUSSION

      To obtain a COA, Thompson 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, 327 (2003). In particular, the petitioner must make a substantial

showing that the state court’s decision “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). This standard is satisfied by demonstrating that “reasonable jurists

could debate whether . . . 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) (internal

quotation marks omitted). “[A] claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Miller-El, 537 U.S. at 338.

A.    Suppression Motion

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      Thompson first argues the trial court erred in denying his motion to

suppress evidence. State prisoners, however, are not entitled to federal habeas

relief for alleged violations of the Fourth Amendment exclusionary rule “where

the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim.” Stone v. Powell, 428 U.S. 465, 494 (1976).

      Here, the record indicates that the state provided Thompson an opportunity

for full and fair litigation of his claim. The trial court held a hearing on

Thompson’s motion to suppress and the issue was fully briefed and reviewed on

appeal. Because Thompson’s claim was fully and fairly litigated, we deny him a

COA on this issue.

B.    Sufficiency of the Evidence

      Thompson argues insufficient evidence exists to support his conviction for

aggravated burglary. When evaluating the sufficiency of the evidence, “the

relevant question is 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).

      Here, the Kansas Court of Appeals reasonably rejected Thompson’s claim.

The court explained,

            When the sufficiency of the evidence is challenged in a
      criminal case, the standard of review is whether, after review of all
      the evidence, viewed in the light most favorable to the prosecution,

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      the appellate court is convinced that a rational factfinder could have
      found the defendant guilty beyond a reasonable doubt. State v.
      Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).

             It was uncontroverted that Thompson was found in possession
      of items from a purse belonging to one of the owners of the Escort.
      This owner testified to being “100-percent sure” that prior to
      Thompson’s possession of it, her purse had been in the living area of
      the residence. Her husband recalled her carrying the purse into the
      house. The owners of the Escort also could not account for the mud
      inside their garage. Viewing this evidence in a light most favorable
      to the prosecution, a rational factfinder could have found Thompson
      guilty of aggravated burglary beyond a reasonable doubt.


State v. Thompson, No. 93,322, 2006 WL 399126, at *4–5 (Kan. Ct. App. Feb. 17,

2006) (internal quotation marks and alterations omitted).

      We conclude the Kansas Court of Appeals applied the correct standard of

review to the case, and its decision is supported by the record. Because the state

court’s decision is not contrary to or an unreasonable application of Jackson, 443

U.S. at 319, we deny Thompson a COA on this claim.

C.    Incorrectly Calculated Sentence

      Thompson next argues the trial court incorrectly calculated his sentence by

failing to consider his objection to his criminal history. As a general rule, federal

habeas relief is not available for errors in the interpretation of state sentencing

law. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). However, a state

court’s arbitrary disregard of the state sentencing law and imposition of an

unauthorized sentence may violate the defendant’s due process rights. See Hicks


                                          -5-
v. Oklahoma, 447 U.S. 343, 346 (1980); see also Whalen v. United States, 445

U.S. 684, 689–90 n.4 (1990).

      Here, the Kansas Court of Appeals did not arbitrarily disregard state

sentencing law. The court reasonably concluded that Thompson’s challenge was

moot; even if the trial court erred, it would not have affected the length of

Thompson’s sentence. 2 Because the Kansas Court of Appeals’ decision was not

      2
          As the Kansas Court of Appeals explained,

             Thompson first contends that the trial court erred in ruling that
      his objections to four convictions in his criminal history were moot.
      At sentencing, Thompson’s appointed counsel agreed with the trial
      court’s observation that Thompson had 31 prior convictions and a
      criminal history of “A” apart from the prior convictions Thompson
      specifically challenged. On appeal, Thompson similarly does not
      claim this court’s ruling would affect his sentence in any way. As a
      result, this issue is moot on appeal. See Smith v. Martens, 279 Kan.
      242, 244, 106 P.3d 28 (2005) (a judicial tribunal only determines
      “real controversies relative to the legal rights of persons . . . which
      are actually involved in the particular case”).

              Thompson cites State v. Welty, 33 Kan. App. 2d 122, 98 P.3d
      664 (2004), but that case does not change the result. As this court in
      Welty observed: “If a mistake is made in a PSI criminal history report
      . . . the mistake is not etched in stone for the remainder of time.” 33
      Kan. App. 2d at 126. Thompson’s counsel at sentencing suggested
      the contested prior convictions may become material if the criminal
      history statutes are amended in the future, but at such time Thompson
      would not be barred from contesting the prior convictions. Collateral
      estoppel applies only if “the existence of a particular conviction has
      been determined on the merits by a court.” 33 Kan. App. 2d at 126.
      Because the issue was moot, the district court in this case did not
      determine the existence of the four prior convictions on the merits.

Thompson, 2006 WL 399126, at *5.
                                                                        (continued...)

                                          -6-
contrary to or an unreasonable application of federal law, we deny Thompson a

COA on this claim.

D.    Application of Criminal History

      Thompson next argues the trial court erred in not submitting to the jury the

question of whether he had prior convictions.

      Federal law, however, does not require judges to submit this question to the

jury. “Other than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,

490 (2000); see also Blakely v. Washington, 542 U.S. 296, 301 (2004) (same);

Hunter v. Werholtz, 505 F.3d 1080, 1082 (2007) (holding Apprendi does not

require a state to prove beyond a reasonable doubt facts related to prior

convictions). Because Kansas’s use of Thompson’s prior convictions to increase

his sentence does not violate Apprendi, we deny Thompson a COA on this issue.

E.    Cunningham v. California

      Thompson nonetheless argues the trial court’s failure to submit his criminal

record to the jury violates Cunningham v. California, 127 S. Ct. 856 (2007). In

Cunningham, the Court struck down California’s determinate sentencing law




      2
          (...continued)


                                         -7-
because it assigned to the trial judge, not to the jury, the authority to find facts

that expose a defendant to an elevated sentence. Id. at 860.

      Even assuming Cunningham retroactively applies to Thompson’s case, his

sentence is still constitutional. The Court in Cunningham struck down

California’s law because it permitted the judge to find facts—other than the

existence of prior convictions—permitting an elevated sentence. Id. at 871. The

Court reemphasized that the Constitution does not require juries to determine the

existence of prior convictions. Id. at 868. (“Except for a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)

Therefore, the sentencing judge did not violate Cunningham by refusing to submit

Thompson’s criminal record to the jury. Because the sentencing judge’s decision

is not contrary to or an unreasonable application of Cunningham, we deny

Thompson a COA on this claim.

                                 III. CONCLUSION

      For the reasons set forth above, we DENY Thompson’s petition for a COA.

                                  Entered for the Court,


                                  Timothy M. Tymkovich
                                  United States Circuit Judge




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