                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 21 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ARTHUR DONNELL MILLER, JR.,

          Petitioner - Appellant,
 v.
                                                       No. 02-6056
 RON WARD, Director of Oklahoma
                                                 (D.C. No. 01-CV-1695-A)
 Department of Corrections,
                                                     (W.D. Oklahoma)
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS, and STATE OF
 OKLAHOMA,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and HARTZ, Circuit Judges.


      Petitioner-Appellant Arthur D. Miller, Jr. brings this § 2254 pro se appeal

challenging his conviction for possession of marijuana in a penal institution after

former conviction of a felony. In his habeas petition, Mr. Miller challenged his



      *
        After examining appellant’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) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
conviction on only one ground: sufficiency of the evidence. The magistrate judge

recommended that his petition be denied on the merits. After considering Mr.

Miller’s timely objections to the magistrate’s recommendation, the district court

adopted the magistrate’s recommendation and denied the petition. This appeal

followed.

      During a search of the cell that Mr. Miller shared with his cellmate, Eric

Thompson, prison authorities found five small packages of marijuana. (Mag. Ord.

at 2.) Some of the marijuana was found hidden within Mr. Miller’s knitted

remote control cover, which was sitting on his bunk. (Tr. I at 86.) Prison

officials also discovered marijuana in clothing worn by Mr. Thompson. (Mag.

Ord. at 2.)

      At trial, a corrections officer testified that Mr. Miller told him several

months after the search that Mr. Miller and Mr. Thompson had obtained the

marijuana in the prison yard. (Tr. II at 16-17.) At trial, Mr. Thompson testified

that Mr. Miller had smoked marijuana with him in their cell prior to the search.

(Tr. II at 59.) Prior to trial, however, Mr. Thompson had sworn in an affidavit

that the marijuana belonged to him, and that Mr. Miller had not known that it was

in the remote control cover. (Aplt Br., Doc. A; Tr. II at 43-44.) Before the

magistrate judge, Mr. Miller argued that this contradiction in Mr. Thompson’s

sworn statements meant that there was insufficient evidence from which a jury


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could have found Mr. Miller guilty of knowing possession. After a thorough

analysis, the magistrate judge rejected Mr. Miller’s argument, and the district

court adopted the magistrate judge’s findings and recommendation.

      For substantially the reasons stated by the magistrate judge and district

court, we DENY Mr. Miller’s application for a COA and DISMISS this appeal.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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