                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   August 21, 2013
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 JACK KAUFMAN, JR.,

              Petitioner - Appellant,

       v.                                                 No. 13-5020
                                             (D.C. No. 4:10-CV-00024-GKF-TLW)
 DAVID C. MILLER, Warden,
                                                          (N.D. Okla.)
              Respondent - Appellee.


                                         ORDER


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      In state court, Mr. Jack Kaufman, Jr. was convicted of drug trafficking.

After unsuccessfully seeking habeas relief in federal district court, Mr. Kaufman

appeals. We can only entertain the appeal if we find that Mr. Kaufman is entitled

to a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2006). Holding

that he is not, we dismiss the appeal.

                     Standard for a Certificate of Appealability

      The threshold issue is whether to issue a certificate of appealability. The

certificate is available only if Mr. Kaufman “has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).
                                        Background

       Two police detectives stopped Mr. Kaufman for a traffic violation and

learned that one of the passengers had outstanding warrants. After learning of the

warrants, the detectives conducted a pat-search of Mr. Kaufman — and a bag of

cocaine fell out from his pants.

       The cocaine was introduced into evidence in Mr. Kaufman’s trial. Trial Tr.,

Vol. I at 68, State v. Kaufman, No. CF-07-1669 (Tulsa Co. Dist. Ct. Jan. 22-23,

2008). 1 That trial resulted in a conviction for trafficking in illegal drugs after

conviction of a felony. Mr. Kaufman appealed the conviction to the Oklahoma

Court of Criminal Appeals, arguing in part that the detectives violated the Fourth

and Fourteen Amendments by initiating the traffic stop, making him continue to

stand next to the car, and conducting a pat-down search for weapons. The state

appeals court rejected Mr. Kaufman’s arguments and affirmed the conviction.

       Mr. Kaufman then filed a petition for a writ of habeas corpus in federal

district court. The court denied habeas relief, and the present appeal followed.




1
        The trial transcript is not part of the record on appeal. But, we can take judicial
notice of the transcript to determine whether the cocaine had been used in the trial.
Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (stating that we can take
judicial notice of the materials filed in the district court even when they are not included
in the record on appeal).

                                              2
                        Mr. Kaufman’s Appellate Arguments

      In his application for a certificate of appealability, Mr. Kaufman challenges:

(1) the traffic stop, (2) the officer’s directive for him to remain standing next to

the car, (3) the search, and (4) the sufficiency of evidence for a conviction.

                  Issues Relating to the Traffic Stop and the Search

      Mr. Kaufman challenges the admissibility of the cocaine that fell out of his

pants, arguing that the detectives should not have initiated a traffic stop, made him

continue to stand next to the car, or conducted a pat-down search. For these

arguments, the federal district court denied relief on a procedural ground: Mr.

Kaufman could not obtain habeas relief because he had the opportunity to fully

and fairly litigate a Fourth Amendment claim in state court.

      Because the district court rested on a procedural ground, we can grant a

certificate of appealability only if reasonable judges might regard the ruling as

debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard,

we deny a certificate of appealability because the district court’s ruling on the

search-and-seizure issues was not reasonably debatable.

      Mr. Kaufman’s arguments are governed by Stone v. Powell, 428 U.S. 465

(1976). There the Supreme Court held that a state prisoner cannot obtain habeas

relief when two elements exist: (1) The habeas claim is based on introduction of

evidence at trial that had been the result of an unconstitutional search or seizure;




                                           3
and (2) the State provided a full and fair opportunity to litigate a Fourth

Amendment claim. Stone, 428 U.S. at 494.

      Both elements exist here: Mr. Kaufman claims that the state trial court

improperly allowed the introduction of cocaine based on an unconstitutional

search and seizure, and he had a full and fair opportunity to litigate a Fourth

Amendment claim through motions to suppress and a direct appeal. See Kaufman

v. State, No. F-2008-117, ECF No. 7, Ex. 3 (Okla. Crim. App. Jan. 14, 2009)

(unpublished op.). This opportunity prevents us from granting habeas relief even

if the cocaine had been found through an unconstitutional search and seizure.

Because the federal district court’s procedural ruling is not reasonably debatable,

we decline to issue a certificate of appealability on the claims involving an

unconstitutional search and seizure.

                            Insufficiency of the Evidence

      Mr. Kaufman also challenges the sufficiency of the evidence. The district

court did not mention this claim, but we can take judicial notice of the contents of

the habeas petition to determine whether this claim had been presented in the

district court. See Guttman v. Khalsa, 669 F.3d 1101, 1130 n.5 (10th Cir. 2012)

(stating that we can take judicial notice of filings in the district court even when

they are not included in the record on appeal). When we exercise our discretion to

take judicial notice, we learn that Mr. Kaufman did not seek habeas relief based on

insufficiency of the evidence. Because this claim was not raised in the district

                                           4
court, we decline to consider it. See United States v. Viera, 674 F.3d 1214, 1220

(10th Cir. 2012).

                                    Conclusion

      Mr. Kaufman has not “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). Accordingly, we deny Mr.

Kaufman’s request for a certificate of appealability and dismiss the appeal.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




                                         5
