                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         August 17, 2005
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 JEFFREY LEE MILBURN,

                  Petitioner-Appellant,                 No. 05-7007
          v.                                           (E.D. of Okla.)
 REGINALD HINES,                                  (D.C. No.CV-01-659-P)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                 *




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




      Appellant Jeffrey Lee Milburn, an Oklahoma state inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal the district

court’s order denying relief pursuant to 28 U.S.C. § 2254. Milburn was sentenced

to 25 years for endeavoring to manufacture methamphetamine, two years for

possession of methamphetamine, two years for possession of a firearm while


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
committing a felony, and two years for the possession of a police scanner while

committing a felony. The sentences were to run consecutively. In his petition for

habeas corpus he raised three issues: (1) his convictions for manufacture and

possession of methamphetamine violated prohibitions against “double

punishment” and double jeopardy; (2) the evidence obtained against him was the

result of an illegal search and seizure; and (3) the sentence imposed against him

was overly excessive.

                                      Analysis

      The parties are familiar with the facts of the case and we need not repeat

them here. It is well settled that a petitioner is not entitled to receive a COA

unless he can make “a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), by demonstrating the issues raised are debatable among

jurists, a court could resolve the issues differently, or that the questions presented

deserve further proceedings.   See Slack v. McDaniel , 529 U.S. 473, 483 (2000).

      Double Jeopardy.     Milburn argues the court imposed double punishment by

sentencing him twice for the same drug crime, in violation of the Double Jeopardy

Clause. Milburn was sentenced once for endeavoring to manufacture

methamphetamine and once for unlawful possession of methamphetamine.            The

Double Jeopardy Clause protects defendants against (1) a second prosecution for

the same offense after acquittal; (2) a second prosecution for the same offense


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after conviction; and (3) multiple punishments for the same offense.       Anderson v.

Mullin , 327 F.3d 1148, 1153-54 (10th Cir. 2003). “[W]here the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to

be applied to determine whether there are two offenses or only one is whether

each provision requires proof of an additional fact which the other does not.”        Id.

(citing Blockburger v. United States , 284 U.S. 299, 304 (1932)).

       Milburn has not met this standard. The statutes under which he was

convicted have different elements and require distinct and separate proof. As

defined by the instructions put forth to the jury in this case, a conviction for

endeavoring to manufacture methamphetamine requires only that the defendant

exert physical and intellectual strength, or put forth a systematic effort, toward

the attainment of manufacture of methamphetamine. No evidence of actual

methamphetamine is necessary, and a conviction for this crime can be satisfied

without physical evidence of methamphetamine. In contrast, a conviction for

possession of methamphetamine requires actual possession of the substance and

does not require proof that the possessor put forth an effort to manufacture it.

Thus, each crime requires evidentiary proof that the other does not. Since

Milburn was not sentenced twice for the same crime, but for different crimes

altogether, resolution of this issue is not debatable under   Slack and it does not

merit the grant of a COA.


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       Illegal Search.     Regarding Milburn’s second claim, it is well settled that

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

Fourth Amendment Claim, a state prisoner may not be granted federal habeas

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

seizure was introduced at his trial.”    See Cannon v. Gibson , 259 F.3d 1253, 1259

(10th Cir. 2001) (citing    Stone v. Powell , 428 U.S. 465, 494 (1976)). In fact,

Milburn appealed this issue to the Oklahoma Court of Criminal Appeals, which

found that he had consented to the challenged search.      See Milburn v. State , No.

F-2000-100 (Okla. Crim. App., Feb. 7, 2001). Because we agree with the district

court that Milburn received a full and fair hearing on his Fourth Amendment

claim, this claim was properly denied and COA is not appropriate.

       Excessive Sentence.      Milburn’s final claim is that his sentence was so

excessive it violated the Constitution’s prohibition against cruel and unusual

punishment. The Supreme Court has held that the Eighth Amendment prohibits a

sentence disproportionate to the severity of the crime.     See Hawkins v. Hargett

200 F.3d 1279, 1281 (10th Cir. 1999) (citing       Hamelin v. Michigan , 501 U.S. 957

(1991)). Our case law on the subject has found a violation of the Eighth

Amendment where there was “gross disproportionality” between a defendant’s

sentence and his crime.      Hawkins , 200 F.3d at 1282. In determining the existence

of “gross disproportionality,” we weigh a variety of factors, including the


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seriousness of the crime, the fit between the punishment and the crime, and the

existence of legislative determinations of an appropriate sentence range.       See id.

at 1284-85.

       Milburn received consecutive sentences of 25 years for his manufacturing

conviction, and 2 years each for his other crimes. We find no disproportionality

with respect to this sentence. First, Milburn’s crimes were serious, and there is

therefore a “fit between [the] punishment and [the] crime.”      Id. at 1284. Second,

his sentence is fully consistent with the applicable range under Oklahoma law.

Finally, these ranges compare favorably with federal sentencing guidelines. In

light of these benchmarks, we cannot say Milburn’s punishment is grossly

disproportionate to his crimes. We therefore agree with the district court that

Milburn’s sentence does not violate the Eighth Amendment.

       Accordingly, we DENY the request for COA and DISMISS the case. We

grant Milburn’s motion to proceed in forma pauperis.

                                                        Entered for the Court

                                                        Timothy M. Tymkovich
                                                        Circuit Judge




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