                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 30, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 DAVID ANDERSON, SR.,

                 Petitioner-A ppellant,                  No. 06-3263
          v.                                          District of Kansas
 STATE OF KAN SAS, PHILL KLINE,                    (D.C. No. 04-3275-CM )
 K ansas Attorney G eneral and SAM
 CLIN E, W arden, Ellsworth
 Correctional Facility,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      David Anderson, Sr., a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A). Because w e conclude that M r. Anderson has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                    Background

      On the evening of M ay 3, 2000, M r. Anderson’s truck collided with a

motorcycle driven by Gary W agner. M r. Anderson and M r. W agner w ere

transported to the hospital where M r. W agner subsequently died. An eye witness

reported to police that M r. Anderson was driving without his lights on and that he

had crossed the center line several times before the collision. At the hospital, an

officer read M r. Anderson an implied consent form and asked for his permission

to perform a blood test. M r. Anderson responded, “I don’t care,” and the police

instructed a nurse to take a blood sample. Approximately an hour later, police

arrested M r. Anderson and he was eventually charged with violating a number of

Kansas statutes, including involuntary manslaughter, driving under the influence,

reckless driving, failure to use headlights, and driving on the left side of the road.

      At trial, the prosecution attempted to introduce the results of the blood

alcohol test, which showed M r. Anderson had a blood alcohol content of 0.21 at

the time of testing. M r. Anderson argued that the sample should be excluded

because it was taken without consent and prior to his arrest. The court agreed and

held that the evidence should be excluded. The government appealed the district

court’s ruling and the Kansas Court of Appeals reversed. The appellate court held

that the blood test was admissible under Schmerber v. California, 384 U.S. 757

(1966), because the officer had probable cause to believe M r. Anderson was

driving under the influence of alcohol, the “evanescent nature of the [blood

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alcohol] evidence” created exigent circumstances allowing seizure without a

warrant, and the test was performed in a reasonable manner. App. 25–26. The

Kansas Supreme Court denied M r. A nderson’s request for review.

      After remand to the state district court, a jury found M r. Anderson guilty on

all counts. M r. Anderson appealed, and the Kansas Court of Appeals affirmed the

conviction. The Kansas Supreme Court denied M r. Anderson’s petition for

review. Thereafter, M r. Anderson filed a petition for habeas corpus in federal

district court under 28 U.S.C. § 2254, challenging his involuntary manslaughter

conviction on Fourth Amendment grounds.

      The district court did not reach the merits of M r. Anderson’s Fourth

Amendment claim; rather, it dismissed the petition because M r. Anderson had

already received an opportunity for full and fair litigation of the claim in state

court under the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 482

(1976). The district court refused to grant a COA. This petition followed.

                                      Discussion

      An individual in state custody may appeal the denial of a motion for relief

under 28 U.S.C. § 2254 only if the district court or this Court first issues a COA.

28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In order to make such a showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . the petition should have been

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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).

      M r. Anderson claims, without citation to authority, that the district court

should have considered the merits of his Fourth Amendment claim despite the fact

that he received multiple hearings on the matter before at least two different state

courts. On the merits, M r. Anderson argues that the state court erred in its

interpretation of Schmerber. In Schmerber, the Supreme Court held that taking a

blood sample w ithout a w arrant after an arrest did not violate the Fourth

Amendment because the delay required in procuring a warrant risked destruction

of evidence. 384 U.S. at 770. M r. Anderson contends that the Schmerber

exception to the warrant requirement only applies to blood samples taken after an

arrest has occurred, and the taking of his blood sample— which occurred prior to

his arrest— thus constitutes an unlawful seizure.

      In Stone v. Powell, the Supreme Court held 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.” 428 U.S. at 494. The opportunity for full and fair litigation “includes, but

is not limited to, the procedural opportunity to raise or otherwise present a Fourth

Amendment claim,” a “full and fair evidentiary hearing contemplated by

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Townsend [v. Sain, 372 U.S. 293 (1963)],” and state court “recognition and at

least colorable application of the correct Fourth Amendment constitutional

standards.” G am ble v. O klahom a, 583 F.2d 1161, 1165 (10th Cir. 1978).

W hether M r. Anderson had an opportunity for a full and fair litigation of his

Fourth A mendment claim in state court is a question this Court reviews de novo.

Cannon v. Gibson, 259 F.3d 1253, 1260 (10th Cir. 2001).

      The state appellate court correctly recognized that Schmerber enunciated

the governing legal standard for M r. Anderson’s Fourth Amendment claim and

applied it to the facts of M r Anderson’s case in at least a colorable manner. The

state appellate court was convinced that the police were justified in taking M r.

Anderson’s blood sample prior to arrest based on logic similar to that employed

in Schmerber: the officers had probable cause to believe that M r. Anderson was

under the influence of alcohol and, in light of the evanescent nature of blood

alcohol evidence, exigent circumstances existed that made an immediate sampling

necessary. No reasonable jurist could find that the state court failed to colorably

apply the correct legal standard, as enumerated in Schmerber. See Cannon v.

Gibson, 259 F.3d 1253, 1264 (10th Cir. 2001) (dismissing a petition for habeas

corpus based on a Fourth Amendment claim because the challenge w as “more

akin to an attack on the merits of the [prior state court] decision rather than a

charge that [it] willfully misapplied constitutional law”).




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                                 Conclusion

      Accordingly, we D EN Y M r. Anderson’s request for a COA and DISM ISS

this appeal.

                                           Entered for the Court,

                                           M ichael W . M cConnell
                                           Circuit Judge




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