                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                          August 14, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court

 JAM ES DALE VAUGHN,
               Petitioner–Appellant,                       No. 07-7026
          v.                                       (D.C. No. CIV-03-383-JHP)
 SAM CALBONE,                                              (E.D. Okla.)
               Respondent–Appellee.



                                       OR DER *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Petitioner, a state inmate proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. Petitioner was convicted, following a jury trial in Oklahoma state court,

of possessing marijuana and methamphetamine w ith intent to distribute after a

former conviction of two or more drug-related felonies. He was sentenced to life

imprisonment and fined $2000. After exhausting his state court remedies,

Petitioner filed the instant petition claiming several errors in his trial, sentencing,


      *
        This order is not binding precedent, except under the doctrines of law of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 Petitioner’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
The case is therefore ordered submitted without oral argument.
and direct appeal. The magistrate judge analyzed each of Petitioner’s claims and

recommended dismissal of the action. The district court affirmed and adopted the

magistrate judge’s report and recommendation and denied the petition. The

district court also rejected Petitioner’s request of a certificate of appealability.

Petitioner now seeks a certificate of appealability from this court.

      To obtain a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).

In order to meet this burden, Petitioner must demonstrate “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) (internal quotation marks omitted).

      The district court used an incorrect standard to deny Petitioner’s Eighth

Amendment challenge to his sentence, stating that habeas relief was not warranted

simply because Petitioner’s sentence was within state statutory sentencing limits.

W hile we must “grant substantial deference to the broad authority that legislatures

necessarily possess in determining the types and limits of punishments for crimes,

as well as to the discretion that trial courts possess in sentencing convicted

criminals,” Solem v. Helm, 463 U.S. 277, 290 (1983), a federal habeas court is

required by the Constitution to examine a challenged sentence— whether state or

federal— to determine if it is proportionate to the crime, see id. at 303. In

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Hawkins v. Hargett, 200 F.3d 1279, 1284-85 (10th Cir. 1999), we clarified that a

state sentence challenged on Eighth Amendment grounds must be reviewed for

“gross disproportionality” to the crime.

      However, Petitioner has not established that he is entitled to a certificate of

appealability on this issue because reasonable jurists would not debate whether

the district court’s judgment was correct. “The gross disproportionality principle

reserves a constitutional violation for only the extraordinary case.” Lockyer v.

Andrade, 538 U.S. 63, 76 (2003). Upon review ing the same evidence available

before the district court, we are convinced that this is not an “extraordinary” case

in which the sentence is grossly disproportionate to the crime. See Harmelin v.

M ichigan, 501 U.S. 957, 994 (1991) (holding that sentence of life imprisonment

without parole for first-time offender’s possession of 672 grams of cocaine did

not violate Eighth A mendment); Gutierrez v. M oriarty, 922 F.2d 1464, 1473 (10th

Cir. 1991) (rejecting Eighth Amendment challenge to life sentence for sale of

small amount of heroin by repeat drug offender).

      W e have carefully reviewed Petitioner’s other arguments regarding alleged

errors in his trial, sentencing, and appeal. Nothing in Petitioner’s brief, the prior

state and federal judicial decisions pertaining to Petitioner’s conviction, or the

record on appeal raises an issue which meets our standard for the grant of a




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certificate of appealability. 1 W e therefore DENY Petitioner’s request for a

certificate of appealability and DISM ISS the appeal.

                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




      1
        Our review of the record also convinces us that the district court did not
err by failing to hold an evidentiary hearing, see 28 U.S.C. 2254(e)(2); see also
Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998), and that Petitioner is not
entitled to any relief based on the district court’s delay in adjudicating his habeas
petition, see United States v. Dago, 441 F.3d 1238, 1248-50 (10th Cir. 2006).

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