                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 23 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 RODNEY SAMPSON,

          Petitioner - Appellant,
                                                        No. 99-6195
 v.
                                                 (D.C. No. CV-98-945-T)
                                               (Western District of Oklahoma)
 JOHN MIDDLETON,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Appellant Rodney Sampson appeals the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because

Sampson has failed to make a substantial showing of the denial of a constitutional

right, we deny his application for a certificate of appealability, see 28 U.S.C.

§ 2253(c).




      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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 and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Following a bench trial in the District Court of Oklahoma County,

Sampson was convicted of trafficking in cocaine base and possession of

marijuana. On direct appeal to the Oklahoma Court of Criminal Appeals,

Sampson raised various claims of error, including failure to suppress evidence

obtained during an unconstitutional search and seizure. Police seized the

evidence at issue from Sampson in the Oklahoma City bus terminal. After

entering the terminal, Sampson had placed his luggage at his feet and his jacket

on the chair next to him. A police officer made a sweep of the station with a

trained dog. The dog indicated the presence of narcotics after sniffing Sampson’s

luggage and jacket. The police then conducted a consensual search of the luggage

and a nonconsensual search of his person. The Court of Criminal Appeals held

that the search was constitutional. Sampson then filed the present petition in the

United States District Court for the Western District of Oklahoma. The district

court denied habeas relief, finding that Sampson was afforded a full and fair

opportunity to litigate his Fourth Amendment claim in state court.

      “[W]here 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.” Stone v. Powell, 428 U.S. 465, 494




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(1976); see also Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999).

Sampson does not contend that the proceedings in state court were deficient.

Rather he contends that the Stone bar does not apply because the Oklahoma courts

“wilfully refuse[d] to apply the correct and controlling constitutional standards.”

Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978). In particular, he

cites United States v. Place, 462 U.S. 696, 707 (1983), which held that exposure

of luggage located in a public place to a trained canine is not a search within the

meaning of the Fourth Amendment. See also United States v. Garcia, 42 F.3d

604, 606 (10th Cir. 1994) (holding that a canine sniff of luggage in a train

baggage car does not constitute a search). Contrary to Sampson’s assertions,

Place does not require reasonable suspicion prior to a dog sniff in this context.

See United States v. Morales-Zamora, 914 F.2d 200, 204-05 (10th Cir. 1990).

      The Oklahoma Criminal Court of Appeals did not wilfully refuse to apply

Place; it cited the case in its summary opinion. See Sampson v. Oklahoma, No. F-

96-1185, slip op. at 2 n.1 (Okla. Crim. App. Sept. 11, 1997). Furthermore,

nothing in the record indicates that the court applied Place improperly or in a

manner contrary to controlling constitutional standards in reaching its conclusion.

Therefore, Sampson has failed to demonstrate that he was denied a full and fair

opportunity to litigate his Fourth Amendment claim in state court and he has

failed to make a substantial showing of the denial of a constitutional right.


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Petitioner’s motion to proceed in forma pauperis is GRANTED; the application

for a certificate of appealability is DENIED; and this matter is DISMISSED.

      The mandate shall issue forthwith.

                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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