                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              DEC 2 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 EDDIE LEVI GRIGGS,

               Petitioner/Appellant,                       No. 04-6173
          v.                                     Western District of Oklahoma
 CHARLES RAY, Warden,                              (D.C. No. 03-CV-386-HE)

               Respondents/Appellees.


                                       ORDER *


Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      Eddie Levi Griggs, a state prisoner proceeding     pro se , seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

which denied his habeas corpus petition under 28 U.S.C. § 2254.       See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr.Griggs has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      Mr. Griggs was convicted by bench trial in Oklahoma state court of

trafficking in illegal drugs and unlawful possession of paraphernalia. He


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. Mr.

Griggs then filed a habeas corpus petition in the United States District Court for

the Western District of Oklahoma. The trial judge referred the matter to a

magistrate judge, who recommended that Mr. Griggs’s petition be denied. After

reviewing Mr. Griggs’s objections, the trial judge adopted the magistrate judge’s

recommendation and denied Mr. Griggs’s petition. This appeal followed.

      The three issues Mr. Griggs raises in his application for a COA are

identical to his claims in the district court, which were nearly identical to those he

presented to the OCCA. First, he claims the record fails to support that he

competently, knowingly, and intelligently waived his right to a jury trial. Second,

he asserts the Oklahoma trial court erred by refusing to suppress evidence

gathered by officers who allegedly had no jurisdiction. Finally, he claims the trial

court erred by failing to respond to his August 3, 2000 motion to suppress, in

which he asserted the search and seizure were unreasonable under the Fourth

Amendment.

      Mr. Griggs’s first claim—that he unknowingly waived his right to a jury

trial—was rejected by the OCCA, which found “record evidence of an informed

waiver of jury trial.” Doc No. 23, Ex. 3 at 2. This evidence was a court minute

entry, signed by Mr. Griggs and his attorney, which reflected the waiver of a jury

trial. The OCCA stated this signed waiver indicated Mr. Griggs, before electing a


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bench trial, had been “advised in detail of the right to a jury trial and the right to

waive the same.” Id. , citing Hayes v. State , 541 P.2d 210, 212 (Okla. Crim. App.

1975). The magistrate judge found the OCCA’s ruling “was reasonable, legally

and factually, and does not entitle Mr. Griggs to habeas relief.” Doc. No. 25 at 3.

      We agree with the OCCA and the magistrate judge. Contrary to Mr.

Griggs’s assertions, the record is not “silent” as to whether he intelligently

waived his right to a jury trial. COA Application at 16. To be sure, there is no

evidence memorializing a colloquy between the trial judge and Mr. Griggs, but

“[n]either . . . an oral colloquy, nor any other particular form of waiver, is

required for a valid waiver [of a jury trial] as a matter of federal constitutional

law.” Fitzgerald v. Withrow , 292 F.3d 500, 504 (6th Cir. 2002). Moreover, Mr.

Griggs has introduced no evidence to show that he misunderstood the

representations he made when he signed, together with his counsel, the minute

entry. Thus, this claim has no merit.

      Mr. Griggs’s second claim is likewise unavailing. He claims “the trial

court erred in failing to sustain defendants [sic] motion to suppress due to the

lack of jurisdiction of the arresting officers.” COA Application at 2. As the

magistrate judge correctly noted, this allegation concerns a state law

issue—police department jurisdiction—decided by the Oklahoma state court.

Consequently, it is not reviewable by a federal habeas court. Doc. No. 25 at 6,


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citing Estelle v. McGuire , 502 U.S. 62, 67–68 (1991).

       Finally, Mr. Griggs seeks habeas relief because the district court allegedly

failed to rule on his August 3, 2000 motion to suppress, in which he claimed the

evidence used against him was obtained through an unreasonable search and

seizure. The magistrate judge determined Mr. Griggs was not entitled to habeas

relief on this claim because the holding of     Stone v. Powell , 428 U.S. 465, 481–82

(1976), precludes federal habeas courts from considering a defendant’s Fourth

Amendment claims “provided that the defendant had an opportunity for full and

fair litigation” of those claims in state court. Doc. 25 at 4. We agree.

       We have held that “[u]nder     Stone , habeas relief shall not be granted on the

ground that the trial court admitted evidence obtained in violation of the Fourth

Amendment despite the judicially-created exclusionary rule” if such claims were

“full[y] and fair[ly]” litigated during state court proceedings.      Smallwood v.

Gibson , 191 F.3d 1257, 1265 (10th Cir. 1999). If a defendant’s Fourth

Amendment claim was fully and fairly litigated—either at trial or on

appeal—federal habeas relief on that claim is unavailable.         Stone , 428 U.S. at

494–95 n.37.

       In this case, Mr. Griggs fully and fairly presented his Fourth Amendment

claim, both at trial and on appeal. When, in a preliminary hearing, Mr. Griggs’s

counsel challenged the existence of probable cause for officers to search his car,


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the trial judge stated, “I believe the State had met its burden as to probable cause

on Count One, Trafficking.” Doc. No. 24 at 77. During Mr. Griggs’s trial, his

counsel acknowledged that the trial court declined to grant a motion on this issue.

Mr. Griggs also appealed this claim to the OCCA, which denied relief. Since Mr.

Griggs had the opportunity at trial and on appeal to present his Fourth

Amendment claims, Stone bars us from granting habeas relief on this point.

      Moreover, Mr. Griggs’s assertion that the trial court never specifically

ruled on his August 3, 2000 motion is incorrect. The OCCA addressed this point

in its ruling. It “disagree[d] with [Mr. Griggs’s] contention that the trial court

failed to rule on his motion to suppress” and observed that the “transcript of the

bench trial includes a statement from defense counsel conceding that the court

had previously denied the motion.” Doc. No. 23, Ex. 3, at 3 n.2. Thus, for the

third time, Mr. Griggs’s claim regarding his August 3 motion to suppress fails.

      Accordingly, we DENY Mr. Griggs’s request for a COA and            DISMISS this

appeal. Petitioner’s motion to proceed   in forma pauperis is also DENIED.



                                                Entered for the Court,

                                                Patrick Fisher, Clerk




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