                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 12 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 MARK D. MOLLOY,

          Petitioner - Appellant,
                                                       No. 02-6173
 v.                                               D.C. No. CIV-01-1777-R
                                                     (W.D. Oklahoma)
 H. N. SCOTT, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Mark D. Molloy, a state inmate appearing pro se,

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

court’s order denying relief on his petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. Because Mr. Molloy has failed to make “a substantial showing

of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         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 case is therefore ordered submitted without oral argument.
deny his request and dismiss the appeal.

      Mr. Molloy was convicted by a jury in Oklahoma state court of possession

with intent to use a substance to manufacture a controlled dangerous substance

(Count I), unlawful possession of a controlled dangerous substance with intent to

distribute (Count II), and possession of a sawed-off shotgun after former

conviction of a felony (Count III). He was sentenced to consecutive prison terms

of 35, 10 and 5 years and was fined $70,000. On direct appeal, the Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed. I R. Doc. 8, Ex. C.

      Mr. Molloy then filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in federal district court asserting the same two claims raised before

the OCCA: (1) that the search of his residence was unlawful under the Fourth and

Fourteenth Amendments because the search warrant was invalid; and (2) that he

was subjected to double jeopardy in violation of the Fifth and Fourteenth

Amendments because he received multiple punishments for the same offense.

The magistrate judge carefully considered each of these claims and issued a

Report and Recommendation recommending that the district court deny Mr.

Molloy’s petition. After detailed consideration of Mr. Molloy’s objections, the

district court adopted the magistrate judge’s recommendation and denied Mr.

Molloy’s petition on the merits. Mr. Molloy now asserts, before us, the same

claims raised before the district court in seeking a COA.


                                           -2-
      In order for this court to grant a COA, Mr. Molloy must make “a substantial

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

as here, the district court has rejected the habeas petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      The claims before the district court were presented to the OCCA and were

denied by that court in a summary opinion that contained a short discussion of

each claim. As such, the district court could not properly issue a writ of habeas

corpus unless it found that the state court adjudication 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.” 28

U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Further,

the fact that the OCCA denied relief to Mr. Molloy in a summary opinion has no

effect on the deference owed to the state court’s result. See Aycox v. Lytle, 196

F.3d 1174, 1177 (10th Cir. 1999). It is against these standards that the district

court’s denial of Mr. Molloy’s petition must be assessed.

      In his habeas petition, Mr. Molloy argued that the search of his residence

was unlawful under the Fourth Amendment because the search warrant was

invalid. The district court concluded that it was barred from reaching the merits


                                         -3-
of Mr. Molloy’s claim because he received an opportunity for full and fair

litigation of the claim in state court. See Stone v. Powell, 428 U.S. 465, 494

(1976) (“[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.” (footnotes omitted)).

      On appeal, Mr. Molloy first asserts the district court erred in applying

Stone to bar habeas relief because he never received a full and fair opportunity to

litigate this claim in state court. Whether Mr. Molloy had a full and fair

opportunity to litigate his Fourth Amendment claim in state court is a question

this court reviews de novo. Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir.

1992). In Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978), we held

that opportunity for full and fair consideration includes, but is not limited to, the

procedural opportunity to raise or otherwise present a Fourth Amendment claim

and the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372

U.S. 293 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504

U.S. 1 (1992). Such opportunity further “contemplates recognition and at least

colorable application of the correct Fourth Amendment constitutional standards.”

Gamble, 583 F.2d at 1165. Upon de novo review of the district court order and

the state court record, we agree with the district court that Mr. Molloy had a full


                                          -4-
and fair opportunity to litigate this claim in state court. As the district court

observed, the OCCA gave “thorough consideration” to Mr. Molloy’s arguments

and to “the entire record . . . on appeal, including the original record, transcripts,

and briefs.” I R. Doc. 8, Ex. C at 2. Therefore, we conclude that habeas review

of Mr. Molloy’s Fourth Amendment claim is not available under Stone. We also

agree with the district court that Mr. Molloy has not shown he was entitled to a

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

      Finally, Mr. Molloy reasserts his argument that he was subjected to double

jeopardy in violation of the Fifth Amendment because he received multiple

punishments for the same offense via convictions for Counts I and II. The

Double Jeopardy Clause, among other things, protects against multiple

punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717

(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).

This protection, however, is limited to ensuring “that the sentencing discretion of

courts is confined to the limits established by the legislature,” for it is the

legislature that is vested with “the substantive power to prescribe crimes and

determine punishments.” Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus,

when a course of criminal conduct constitutes a violation of two statutory

provisions, the test to determine whether the punishments are “multiple,” in

violation of the Double Jeopardy Clause, is “essentially one of legislative intent.”


                                          -5-
Id. In the absence of clear legislative intent, courts must apply the Blockburger

test, which states that “where 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 a fact

which the other does not.” Blockburger v. United States, 284 U.S. 299, 304

(1932).

      Having carefully reviewed Mr. Molloy’s arguments, the OCCA opinion, the

magistrate judge’s report and recommendation, and the district court’s order, we

find the reasoning of the district court persuasive and we agree that the OCCA’s

conclusion was not contrary to and did not involve an unreasonable application of

clearly established federal law. We note that Peacock v. State, 46 P.3d 713 (Okla.

Crim. App. 2002) adds nothing to alter our conclusion that the conduct charged in

Count I is separate and distinct from that charged in Count II such that no double

jeopardy problem exists here.

      Because Mr. Molloy has failed to show that reasonable jurists would find

the district court’s assessment of his constitutional claims debatable or wrong,

and since none of Mr. Molloy’s claims suffice to make a substantial showing of a

denial of a constitutional right, we DENY a COA and DISMISS the appeal.

                                       Entered for the Court

                                       Paul J. Kelly, Jr.
                                       Circuit Judge

                                         -6-
