                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUN 5 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DEMETRIO QUINTANA,
             Petitioner - Appellant,                    No. 97-6409
 v.                                                (D.C. No. 97-CV-556)
 EDWARD EVANS and ATTORNEY                             (W. D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,
             Respondents - Appellees.


                          ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



      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); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

      Appellant was convicted by a jury of possession of cocaine, misdemeanor

possession of marijuana, and possession of a firearm while in the commission of a



      *
       This order and judgment is not binding precedent, except under the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.
felony. Appellant’s conviction and sentence were affirmed on appeal to the

Oklahoma Court of Criminal Appeals. Appellant filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court

for the Western District of Oklahoma, claiming that his conviction “was obtained

by use of evidence obtained pursuant to an unlawful seizure . . . in violation of

the Fourth Amendment to the United States Constitution.” R., Doc. 1 at 6. The

district court accepted the findings and recommendation of the magistrate judge

and dismissed Appellant’s section 2254 petition. See id., Doc. 14.

      Appellant seeks a reversal of the district court’s dismissal of his petition.

The district court did not issue nor deny Appellant a certificate of appealability.

Pursuant to Federal Rule of Appellate Procedure 22(b) and Tenth Circuit protocol,

we assume that the district court denied Appellant a certificate of appealability,

and that a motion for the issuance of such a certificate is before this court.

      To obtain a certificate of appealability, an appellant must make “a

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

2253(c)(2). We conclude that Appellant has not made the requisite showing.

Appellant’s petition argues only his repeated contention that the search and

seizure conducted during his arrest violated his constitutional rights. We agree

with the magistrate judge and the district court that Appellant had a full and fair

opportunity to litigate this claim in the state courts. Appellant is, therefore,


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precluded from bringing a claim for habeas corpus relief based on this assertion.

See Stone v. Powell, 428 U.S. 465, 482 (1976); Miranda v. Cooper, 967 F.2d 392,

401 (10th Cir.), cert. denied, 506 U.S. 924 (1992).

      Appellant is DENIED a certificate of appealability, and the order of the

district court dismissing Appellant’s petition is AFFIRMED.


                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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