                                                                                   FILED
                                                                       United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                  TENTH CIRCUIT                                April 6, 2020
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 RICHARD THORNTON,

              Petitioner - Appellee,

 v.                                                         No. 17-1369
                                                   (D.C. No. 1:15-CV-00432-PAB)
 BARRY GOODRICH, Warden, BCCF;                                (D. Colo.)
 THE ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellants.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges. 1


      A traffic stop and dog sniff of Richard Thornton’s vehicle revealed 45 pounds of

marijuana. The entire stop, including the search of the vehicle, lasted approximately 85




      1
         While the late Honorable Monroe G. McKay was assigned to, and participated in
the disposition of, this matter before his death on March 28, 2020, his vote was not
counted. See Yovino v. Rizo, 139 S. Ct. 706, 710 (2019) (federal court may not count the
vote of a judge who dies before a decision is issued). “The practice of this court permits
the remaining two panel judges if in agreement to act as a quorum in resolving the
appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see also 28
U.S.C. § 46(d) (noting circuit court may adopt procedures permitting disposition of an
appeal where remaining quorum of panel agrees on the disposition). The remaining panel
members have acted as a quorum with respect to this Order.
minutes and was recorded by the stopping officer’s “dashcam,” the video camera

attached to the dashboard of the officer’s vehicle. Thornton was subsequently charged in

Colorado state court with various drug offenses and the operation of an unregistered

vehicle. He moved to suppress evidence, saying, among other things, the 45 minutes

elapsed time between the vehicle stop and dog sniff was unreasonable.

       At the evidentiary hearing, the State introduced a “corrected” video (more

accurately, a condensed video) of the stop which consisted of three excerpts of the full

video. While it contained the same timestamps as the full video, the corrected video

omitted approximately 20 minutes between the vehicle stop and dog sniff.

       The state trial judge denied the suppression motion because Thornton’s continued

detention after the initial stop of his vehicle was reasonable based on the totality of the

circumstances. Those circumstances included the officer’s attempts to ascertain the true

status of Thornton’s Arizona license plates which were designated “not for use on the

highway” and “for credit only.”

       Thornton was subsequently convicted of the charges and sentenced to 12 years in

prison. He filed a direct appeal, arguing the trial court erred in denying his motion to

suppress. The Colorado Court of Appeals affirmed. In doing so, it erroneously stated the

time between the vehicle stop and the dog sniff to be 20 minutes. The Colorado Supreme

Court denied certiorari review.

       Thornton filed a pro se 28 U.S.C. § 2254 habeas corpus petition, 2 claiming the



       2
           We have liberally construed Thornton’s pro se pleadings, stopping short,

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state courts erred in denying his motion to suppress because they had relied on the

corrected video of the traffic stop which omitted 20 minutes between the vehicle stop and

dog sniff. According to him, that omission was critical to their decision that the delay

was reasonable. A district judge denied the motion. Thornton appealed. A judge of this

Court granted a certificate of appealability (COA) as to whether the state court

proceedings had provided Thornton a full and fair opportunity to litigate his Fourth

Amendment claim under Stone v. Powell, 428 U.S. 465 (1976). The State filed a

response brief suggesting “the case should be remanded for the district court to address

the Stone issue after reviewing the state court record, which was not considered by the

district court before and not included in the record . . . on appeal.” Thornton v. Goodrich,

645 F. App’x 666, 667 (10th Cir. 2016) (unpublished). A panel of this Court agreed. Id.

       On remand, a different district judge again denied relief. 3 After thoroughly

reviewing the state court record, he decided Thornton was afforded a full and fair

opportunity to litigate his Fourth Amendment claim in state court as required by Stone.




however, of serving as his advocate. See United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009).
       3
         By the time the judge issued the second order denying his § 2254 petition,
Thornton had been released on parole. Nevertheless, he satisfies the “in custody”
requirement of § 2254 because he was incarcerated at the time he filed his petition. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998). Moreover, because he remains on parole, his
§ 2254 petition is not moot. Id. (“An incarcerated convict’s (or a parolee’s) challenge to
the validity of his conviction always satisfies the case-or-controversy requirement,
because the incarceration (or the restriction imposed by the terms of the parole)
constitutes a concrete injury, caused by the conviction and redressable by invalidation of
the conviction.”).

                                             3
He issued a detailed 31-page order which can be summarized as follows.

       Thornton presented his Fourth Amendment claim in state court by filing a motion

to suppress evidence which included a claim that the length of his detention was

unreasonable. At the evidentiary hearing on the motion, defense counsel cross-examined

the stopping officer concerning the stop of Thornton’s vehicle and specifically

complained about the 45-minute delay before the dog sniff. Moreover, during his

closing argument, counsel argued that the actual video recording of the stop established

Thornton to have been detained for 45 minutes and sought to downplay the officer’s

reasons for detaining Thornton after he had cleared the vehicle’s license plates. In

denying the motion to suppress, the state trial judge applied the appropriate constitutional

standards governing traffic stops. Although the trial judge reviewed the corrected video,

not the video of the full stop, the corrected video showed that the stop was initiated at

20:42 and the dog sniff occurred at 21:26 (about 45 minutes later). Moreover, while the

length of the detention is certainly an important factor in the reasonableness equation,

other factors are also relevant, and the trial court considered those factors in making its

decision. The record also reflected Thornton filed a motion to reconsider the denial of

the motion to suppress. The trial judge denied the motion because Thornton had not

provided any new evidence warranting reconsideration. Although Thornton could have

argued at that time that the corrected video was incomplete, he did not.

       Finally, Thornton filed a direct appeal and specifically directed the appellate court

to evidence in the record showing 45 minutes elapsed between the vehicle stop and dog




                                              4
sniff. In its decision, the appellate court misstated that duration as 20 minutes. 4

Nevertheless, that temporal mistake did not undermine the fact that Thornton was

provided a full and fair opportunity to litigate his claim in state court. The district judge

concluded:

       The record shows the state appellate court was adequately apprised by
       [Thornton’s] counsel of the factual basis concerning the Fourth Amendment
       claim, and [Thornton] has failed to demonstrate that the state court did not
       engage in a colorable application of the correct Fourth Amendment
       constitutional standards. [Thornton’s] disagreement over how the evidence
       should have been weighed, how the evidence and law should have been
       interpreted, and what the credibility determinations should have been does
       not provide a basis for this Court to find that [he] did not have the opportunity
       to fully and fairly litigate his claim. In light of the record, the factual mistake
       concerning the length of [his] detention made by the Colorado Court of
       Appeals did not devalue or compromise the proceedings afforded to [him]
       such that it would provide an exception to the restriction on federal habeas
       review under Stone.

R. at 275–76 (citations omitted).

       The judge denied a COA so Thornton renews his request here. A COA is a

jurisdictional prerequisite to our review of a state prisoner’s petition for a writ of habeas

corpus. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). We

will issue a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here,

       the district court denies a habeas petition on procedural grounds without
       reaching the prisoner’s underlying constitutional claim, a COA should issue
       when the prisoner shows, at least, that jurists of reason would find it
       debatable whether the petition states a valid claim of the denial of a



       4
       Given that Thornton specifically informed the appellate court that the delay was
45 minutes, the court’s reference to 20 minutes appears to be a scrivener’s error.

                                               5
       constitutional right and that jurists of reason would find it debatable whether
       the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thornton has not met his burden.

       In Stone, the Supreme Court concluded “that where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 494 (footnote

omitted). “Opportunity for full and fair consideration includes, but is not limited to, the

procedural opportunity to raise or otherwise present a Fourth Amendment claim,” a “full

and fair evidentiary hearing,” and “at least colorable application of the correct Fourth

Amendment constitutional standards.” Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th

Cir. 1978) (footnote and internal quotation marks omitted).

       After a thorough review of the record, the district judge’s decision, and Thornton’s

filings, we see no error in the district judge’s decision that the state court proceedings

afforded Thornton a full and fair opportunity to litigate his Fourth Amendment claim.

Although Thornton insists the state courts’ decisions denying his motion to suppress were

wrong because they were based on the corrected video, “the ultimate accuracy of a state

court’s legal analysis is not relevant to the inquiry required by Stone unless ‘the state

court willfully refuse[d] to apply the correct and controlling constitutional standards.’”

Fuller v. Warden, Ark. Valley Corr. Facility, 698 F. App’x 929, 941 (10th Cir. 2017)

(unpublished) (quoting Gamble, 583 F.2d at 1165). That was not the case here. The state

courts relied on their own precedent, which in turn relied on controlling Supreme Court


                                              6
precedent. See People v. Rodriguez, 945 P.2d 1351, 1362 (Colo. 1997) (en banc)

(considering United States v. Place, 462 U.S. 696 (1983), United States v. Sharpe, 470

U.S. 675 (1985), and Florida v. Royer, 460 U.S. 491 (1983), in deciding whether an

investigatory detention exceeded that necessary to effectuate the purpose of the stop).

       Because reasonable jurists could not debate the correctness of the district court’s

decision, we DENY a COA and DISMISS this matter. Thornton’s motion to proceed in

forma pauperis (ifp) on appeal is GRANTED.



                                                 Entered for the Court
                                                 Per Curiam




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