                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 18 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    RONNIE PALMER,

                  Petitioner - Appellant,

    v.                                                    No. 02-2060
                                                 D.C. No. CIV-01-574 MV/LFG
    ATTORNEY GENERAL FOR THE                           (D. New Mexico)
    STATE OF NEW MEXICO; JOE
    WILLIAMS, Warden, Lea County
    Correctional Facility,

                  Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , EBEL , and O’BRIEN , 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      This order and judgment is not binding precedent, except under the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 seeks a certificate of appealability (COA) in order to proceed on

appeal from the district court’s denial of his petition for writ of habeas corpus

brought pursuant to 28 U.S.C. § 2254. For us to grant a COA, he must make “a

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

§ 2253(c)(2). When, as here, the claims have been adjudicated on the merits in

state court, a habeas petition cannot be granted

       unless the adjudication of the claim--(1) resulted in a decision that
       was contrary to, or involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme Court of the
       United States; or (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the evidence
       presented in the State court proceeding.

Id. § 2254(d). A state court decision is contrary to clearly established federal law

under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the State court decides

a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.”     Williams v. Taylor , 529 U.S. 362, 413 (2000). A state

court decision is an unreasonable application of federal law under § 2254(d)(2)

“if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of

the prisoner’s case.”   Id.

       Petitioner was convicted, on a conditional plea of nolo contendere, of one

count of possession of marijuana with intent to distribute in violation of

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N.M. Stat. Ann. § 30-31-22(A)(1), reserving the right to appeal the denial of his

motion to suppress certain evidence obtained as a result of a border checkpoint

detention. In state court, as in the federal proceedings, petitioner contended first,

that Border Patrol agents lacked reasonable suspicion to justify prolonging his

detention at the checkpoint (after determining he was a United States citizen) and

second, that the search of the vehicle he was towing exceeded the scope of

consent because the agents let air out of the tires, thereby detecting marijuana

odor inside those tires.

       As noted, the state courts addressed petitioner’s claims on the merits,

determining that the agents had reasonable suspicion to justify his detention by

moving him to a secondary area for further investigation. The state courts further

determined that petitioner’s general consent to search both the vehicle he was

driving and the one he was towing gave agents the authority to conduct a search

broad enough to encompass releasing a small amount of air from the tires.

       The district court correctly determined that the state court’s holdings did

not meet the strict standards under   Williams for granting federal habeas relief.

The facts underlying petitioner’s detention clearly complied with the

reasonableness test required of an investigative detention under   Terry v. Ohio ,

392 U.S. 1 (1968), i.e., “whether the officer’s action was justified at its inception,

and whether it was reasonably related in scope to the circumstances which


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justified the interference in the first place.”         Id. at 20. The circumstances in

petitioner’s case included the fact that he did not know who had rented the

U-Haul he was driving, nor did he supply documentation for either vehicle in his

possession. He also opened the encounter with the agents by immediately using

profanity, which the agents thought was suspicious, and he was carrying a small

amount of luggage for a relatively long car trip.

       The state courts also agreed with the government that petitioner’s general

consent to the vehicle search included the right to inspect the tires. This does not

constitute an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d)(2). Moreover, petitioner had a full and fair

opportunity to litigate his search and seizure claims in state court, therefore

barring him from obtaining habeas relief on this ground under            Stone v. Powell ,

428 U.S. 465 (1976).

       Finally, petitioner complains that the district court’s adoption of the

magistrate judge’s finding and recommendation without a written opinion

indicates that “the district court failed to conduct a thorough de novo review of

the state court record.” Aplt. Br. at 8. We disagree. “We assume that the district

court performed its review function properly in the absence of evidence to the

contrary.” Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997).




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      Accordingly, for these and the reasons stated in the magistrate judge’s

findings and recommended disposition filed November 13, 2001, we DENY

petitioner’s request for a COA and DISMISS the appeal.

      The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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