                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          April 11, 2006
                                    TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

 FLOYD STRICKLAND,

          Petitioner - Appellant,
 v.                                                      No. 05-8062
                                                   (D.C. No. 04-CV-330-J)
 SCOTT ABBOTT, Warden, Wyoming                            (D. Wyo.)
 State Penitentiary,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.


      Floyd Strickland was convicted in Wyoming state court of two counts of

arson. The district court denied both Mr. Strickland’s 28 U.S.C. § 2254 petition

for a writ of habeas corpus and his request for a certificate of appealability

(“COA”) to appeal the denial of his § 2254 petition. He now seeks a COA from




      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
this court. For substantially the same reasons set forth by the district court, we

DENY a COA and DISMISS this appeal.

      In June 2001, Mr. Strickland was convicted of both first- and second-

degree arson in relation to a fire that damaged the basement of his home. See

Wyo. Stat. Ann. §§ 6-3-101, -102 (2005). He was sentenced to serve concurrent

terms of between 120 and 216 months on the count of first-degree arson and

between 60 and 108 months on the count of second-degree arson. On direct

appeal, Mr. Strickland asserted thirteen points of error, but the Wyoming Supreme

Court affirmed his conviction and sentence. Strickland v. State, 94 P.3d 1034

(Wyo. 2004). 1

      Mr. Strickland then filed a pro se 28 U.S.C. § 2254 petition in federal

district court, asserting that the Wyoming Supreme Court’s decision is contrary

to, or involved the unreasonable application of, United States Supreme Court case

law. 2 Mr. Strickland asserted causes for relief based on: his Fifth Amendment

      1
       Although the original sentence also recommended that Strickland not be
allowed to return to Natrona County should he be released prior to full service of
his sentence, the Wyoming Supreme Court found that portion of the sentence to
be unlawful. Strickland, 94 F.3d at 1050–51.
      2
       The standard for federal habeas review is set out in § 2254:
      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim . . . resulted in
      a decision that was contrary to, or involved an unreasonable application
                                                                       (continued...)

                                         -2-
right against double jeopardy, his Fourth Amendment rights, his Sixth

Amendment right to effective counsel, and his Fifth and Sixth Amendment rights

to due process and a fair trial.

      Applying the standard given in § 2254, the district court denied relief on all

four grounds. It first concluded that the Wyoming Supreme Court did not

unreasonably deny Mr. Strickland’s double jeopardy claim because, in Wyoming,

first- and second-degree arson each “require[] proof of a fact which the other does

not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Second, the

district court rejected Mr. Strickland’s Fourth Amendment claims, both because

he had the opportunity to fully and fairly litigate the issue in the Wyoming courts

and because the Wyoming Supreme Court’s conclusion that Mr. Strickland had

consented to all the challenged searches was not unreasonable. Third, the district

court rejected Mr. Strickland’s claim that his attorney was ineffective in failing to

call an expert witness and failing to request several jury instructions. Finally, the

district court concluded that statements made by the prosecutor did not rise to the

level of a violation of Mr. Strickland’s right to a fair trial. Mr. Strickland sought




      2
       (...continued)
      of, clearly established Federal law, as determined by the Supreme Court
      of the United States . . . .
28 U.S.C. § 2254(d).

                                         -3-
to appeal the district court’s decision, and the district court denied his request for

a COA. He renews his request for a COA before this court.

      Congress has mandated that a COA may issue “only if the applicant has

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

§ 2253(c)(2). We have held that a petitioner “can make such a showing by

demonstrating that the issues he seeks to raise on appeal are deserving of further

proceedings, subject to a different resolution on appeal, or reasonably debatable

among jurists of reason.” Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.

2000). In this case, Mr. Strickland has not made such a showing. Therefore, for

substantially the same reasons set forth in the district court’s thorough opinion,

we DENY Mr. Strickland’s request for a COA and DISMISS this appeal.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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