                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 11 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ARNOLD GENE LONG,

                Petitioner-Appellant,

    v.                                                   No. 03-6230
                                                   (D.C. No. 02-CV-1713-F)
    LENORA JORDAN, Warden;                               (W.D. Okla.)
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, KELLY, and McCONNELL, Circuit Judges.



         After examining the briefs and 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); 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      This order and judgment is not binding precedent, except under the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.
      Petitioner-appellant Arnold G. Long, proceeding pro se, appeals the district

court’s order denying his petition for habeas corpus relief under 28 U.S.C.

§ 2254. Petitioner was convicted by a jury in Oklahoma state court of possession

of drugs with intent to distribute, possession of drug paraphernalia, and

maintaining a dwelling house where a controlled dangerous substance is kept.

His appeal to the Oklahoma Court of Criminal Appeals was denied. He then filed

this § 2254 petition, raising the same issues previously raised in state court. The

magistrate judge issued a comprehensive and well-reasoned twenty page report

recommending that relief be denied, which was adopted by the district court.

      This court granted a certificate of appealability to consider the issues raised

by petitioner, namely, whether (1) his trial counsel rendered constitutionally

ineffective assistance in violation of the Sixth Amendment, and (2) evidence

obtained through a search warrant executed upon his home was obtained in

violation of the Fourth Amendment. Petitioner alleges that his trial counsel had a

conflict of interest because he represented both petitioner and his wife, a

co-defendant, at trial. Petitioner also claims his trial counsel failed to properly

investigate and prepare for trial, and failed to object to the admission of certain

evidence and to comments by the prosecutor. Petitioner further alleges that the

search warrant used by police to enter and search his home was invalid because it

was based on information from an anonymous informant whose information was


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corroborated by what petitioner claims was an impermissible search of his trash

cans, which were sitting on the curbside of his home.

      Because the claims asserted here were adjudicated on the merits by the state

court, no writ of habeas corpus may issue unless the decision of the state court

either was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or . . . was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2);

see also Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000). “In conducting

this inquiry, we presume the factual findings of the state trial and appellate courts

are correct, and we place on the petitioner the burden of rebutting this

presumption by clear and convincing evidence.” Turrentine v. Mullin, 390 F.3d

1181, 1188-89 (10th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)). “We review de

novo the district court’s legal analysis of the state court decision.” Id.

      Having reviewed the briefs, the record, and the standards applicable to

petitions for a writ of habeas corpus, we conclude that petitioner has raised no

ground for a writ to issue in this case. With the exception of one issue not

addressed by the magistrate judge, we AFFIRM the denial of petitioner’s petition

for substantially the same reasons stated by the magistrate judge in his Report and




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Recommendation filed June 23, 2003, and the district court’s order filed August

19, 2003.

      The magistrate judge’s report did not address petitioner’s claim that his

counsel rendered ineffective assistance by failing to file a motion to suppress

based on the affidavit used to procure the search warrant. Although under Stone

v. Powell, 428 U.S. 465, 494 (1976), petitioner may not raise a Fourth

Amendment claim on collateral review if he had a full and fair opportunity to

litigate those issues in state court, he may raise the issue to support an ineffective

assistance of counsel claim. Kimmelman v. Morrison, 477 U.S. 365, 375, 382-83

(1986).

      Petitioner’s ineffective assistance claim fails because he was not prejudiced

by his trial counsel’s failure to challenge the use of the anonymous informant, the

warrantless search of the trash cans, or whether the affidavit supported a probable

cause finding. First, “[w]hen there is sufficient independent corroboration of an

informant’s information, there is no need to establish the veracity of the

informant.” United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)

(quotation omitted). Second, the Fourth Amendment does not prohibit a

warrantless search and seizure of garbage left at the curb outside a home.

California v. Greenwood, 486 U.S. 35, 39-40 (1988). Third, discovery of drug

residue in a suspect’s trash can provide a basis for crediting an anonymous


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informant’s assertions. See United States v. Le, 173 F.3d 1258, 1266 (10th Cir.

1999). Contrary to petitioner’s contentions, the anonymous tip was sufficiently

corroborated, the warrantless search of the city-issued trash cans outside his home

did not violate the Fourth Amendment, and there was sufficient probable cause to

obtain a search warrant. He has therefore failed to establish an ineffective

assistance claim based on his counsel’s failure to raise this issue on a suppression

motion.

      In sum, we AFFIRM the judgment of the district court.

                                                    Entered for the Court


                                                    Stephanie K. Seymour
                                                    Circuit Judge




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