                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 18 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BOBBY FRANKLIN WASHINGTON,

                Petitioner-Appellant,

    v.                                                   No. 97-6272
                                                     (D.C. No. 97-CV-491)
    STATE OF OKLAHOMA; KEN                               (W.D. Okla.)
    KLINGER; JAMES L. SAFFLE,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before TACHA , LOGAN , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Bobby Franklin Washington appeals the district court's dismissal of his

petition for writ of habeas corpus under 28 U.S.C. § 2254. He contends his state

convictions on various drug trafficking charges are invalid, arguing the nighttime

search of the residence where he was staying violated the Fourth Amendment.

An appeal cannot be taken to this court in a § 2254 proceeding unless the

petitioner has obtained a certificate of appealability by making a substantial

showing of the denial of a constitutional right.     See 28 U.S.C. § 2253. We deny

a certificate of appealability and dismiss the appeal.

       Washington argues that the warrant relied upon to search his premises was

defective because the authorizing judge did not find the nighttime search

permissable based on the “likelihood that the property named in the search

warrant will be destroyed, moved or concealed,”        quoting Okla. Stat. Ann. tit. 22

§ 1230. The warrant stated, in the handwriting of the authorizing judge, that the

nighttime search was authorized “to prevent further loss distribution or

consumption of evidence.” Appellant’s App. at 003. At the suppression hearing,

the trial judge found that the handwritten language was intended by the

authorizing judge to be his finding as required by the statute.     See id. at 015.

The nighttime search issue was the only issue Washington argued on direct

appeal. His convictions were summarily affirmed by the Oklahoma Court of

Criminal Appeals.    See id. at 212-13.


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       Fourth Amendment exclusionary rule claims are not cognizable in federal

habeas corpus proceedings if the petitioner had an opportunity for full and fair

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

(1976). The record of Washington’s proceedings in state court indicates

he challenged the constitutionality of the nighttime search both through

a suppression hearing in the trial court, and as the only issue raised in his direct

appeal. The state courts decided his claim on the merits, concluding that the

warrant was not defective and that the nighttime search was lawful. Washington

had a full and fair opportunity to litigate his Fourth Amendment claim in state

court, and federal habeas relief cannot be granted on that ground.

       In an effort to avoid the bar of     Stone v. Powell , Washington argues that his

case presents a more general due process violation because the Oklahoma state

courts arbitrarily failed to follow Oklahoma law relative to nighttime searches.        1



He characterizes his position as one challenging the fairness, integrity, and

legitimacy of the judicial process,       citing Rose v. Mitchell , 443 U.S. 545, 562




1
       Given the specific nature of the handwritten language on the search warrant
in this case, and its closeness to the statutory language, petitioner’s case is
distinguishable from those Oklahoma cases cited in his brief. The almost-perfect
compliance with the statutory dictate here also distinguishes his case from
Fetterly v. Paskett , 997 F.2d 1295, 1299 (9th Cir. 1993), where the sentencing
judge in a capital case clearly failed to follow the statutory balancing procedures
required by state law.

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(1979), and thus not subject to the strictures of   Stone v. Powell . We do not view

Washington’s situation so broadly.

       In reality, Washington is aggrieved because two state courts found against

him on his defective warrant claim. His efforts to couch this situation as

presenting a federal due process matter and as one challenging the fairness and

integrity of the state judicial process are unavailing. His claim is the same as

other garden variety Fourth Amendment claims, barred by        Stone from

consideration as a basis for federal habeas relief where, as here, petitioner had

a full and fair opportunity to litigate his claim in the state courts.

       Indeed, as a more general matter, a federal court cannot grant a habeas

application by a state prisoner if the claim was decided on the merits in state

court, unless the decision was contrary to or involved an unreasonable application

of clearly established federal law as determined by the Supreme Court or was

based on an unreasonable determination of the facts in light of the evidence

presented in state court.   See 28 U.S.C. § 2254(d). The state trial court’s

conclusion that the search warrant complied with state statutory requirements




                                             -4-
does not meet that standard and thus cannot serve as a basis for relief under

§ 2254. See § 2254(d).

      We DENY a certificate of appealability and DISMISS the appeal.

The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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