                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 5 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL R. MAGIRL,

                Petitioner-Appellant,

    v.                                                  No. 98-2129
                                                (D.C. No. CIV 96-81-HB/LCS)
    DONALD DORSEY, Warden; NEW                            (D. N.M.)
    MEXICO ATTORNEY GENERAL,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Michael R. Magirl, a New Mexico state prisoner, applies for a

certificate of probable cause to challenge the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus.     1
                                                               We determine that Magirl

has failed to make a substantial showing of the denial of a constitutional right, the

prerequisite for obtaining a certificate of probable cause and invoking our

appellate jurisdiction.   See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983).

We therefore dismiss the appeal.

       Magirl was convicted by a jury of ten counts of residential burglary, one

count of receiving stolen property, one count of criminal sexual penetration while

armed with a deadly weapon, and one count of aggravated burglary with a deadly

weapon. After failing to obtain relief in the New Mexico state courts on direct

appeal and in collateral proceedings,   2
                                            Magirl filed a petition for a federal writ of

habeas corpus.




1
        We note that Magirl filed a motion for a certificate of appealability,
however, because his petition for habeas corpus relief was filed on January 19,
1996, the provisions of the Antiterrorism and Effective Death Penalty Act do not
apply. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997),
cert. denied , 118 S. Ct. 1375 (1998). We consider his motion as a request for a
certificate of probable cause.
2
       Upon Magirl’s appeal to the New Mexico Court of Appeals, that court
vacated one count of residential burglary for lack of sufficient evidence and
affirmed as to all other counts. The New Mexico Supreme Court denied the
petition for a writ of certiorari. Two petitions for habeas corpus relief filed in
state district court were denied.

                                             -2-
      The district court denied his petition.     3
                                                      On appeal, Magirl raises three

issues: (1) unconstitutionally seized evidence was introduced at trial; (2) trial and

appellate counsel provided him with ineffective assistance of counsel; and

(3) insufficient evidence supported the convictions for two of the residential

burglary counts.

      Magirl’s Fourth Amendment claims concerning the search and seizure of

evidence from his person and residence are not cognizable in federal habeas

proceedings if he had a full and fair opportunity to litigate them in state court.

See Stone v. Powell , 428 U.S. 465, 494 (1976);         Miranda v. Cooper , 967 F.2d 392,

401 (10th Cir. 1992). The issue of whether a petitioner had a full and fair

opportunity to litigate the same claims in state court is a question this court

reviews de novo. See Miranda , 967 F.2d at 401.

      We see nothing in the record to indicate that Magirl was denied this

opportunity. To the contrary, he argued that the evidence should be suppressed as

the fruit of an illegal arrest and an illegal residential search in pre-trial




3
       The district court assigned the matter to the magistrate judge, who made
proposed findings of fact and recommended denying the petition. The district
court adopted the findings and recommendation of the magistrate judge.

                                            -3-
proceedings, on direct appeal, and in state habeas proceedings.   4
                                                                      The rule of Stone

therefore bars our consideration of these claims.

       In a related argument, Magirl asserts that he received ineffective assistance

of counsel, alleging primarily that trial and appellate counsel failed to investigate

and litigate other theories of Fourth Amendment violations. He further claims

that his trial attorney was ineffective because the attorney did not provide

adequate support for a motion for change of venue and did not conduct a

satisfactory cross-examination on the expertise of the officer concerning shoeprint

identification.

       To succeed on an ineffective assistance of counsel claim, a petitioner must

not only establish that counsel’s performance was deficient but also that “the

deficient performance prejudiced the defense,” thus depriving him of “a trial

whose result is reliable.”   Strickland v. Washington , 466 U.S. 668, 687 (1984).

A claim of ineffective assistance of counsel presents a mixed question of law and

fact which we review de novo.      See Cooks v. Ward , 165 F.3d 1283, 1292 (10th

Cir. 1998). Based on our review of the record and “applying a heavy measure of

deference to counsel[s’] judgments,”     Strickland , 466 U.S. at 691, we determine

that counsel’s approach to the trial represented an “an objectively reasonable


4
      We note that, in his district court reply, Magirl appears to have abandoned
claims arising out of evidence seized from his person at the time of his arrest.
See R., Vol. I, Tab 53 at 1-2.

                                           -4-
decision supported by a reasonable investigation.”         Miles v. Dorsey , 61 F.3d

1459, 1476-77 (10th Cir. 1995). Moreover, appellate counsel did not fail “to

raise an issue obvious from the trial record and one that probably would have

resulted in reversal.”     See United States v. Cook , 45 F.3d 388, 395 (10th Cir.

1995). Therefore, we affirm the district court’s conclusion that petitioner was not

denied the effective assistance of trial or appellate counsel.

       Finally, Magirl challenges the sufficiency of the evidence to support his

convictions under two of the ten counts of residential burglary. The test on

federal habeas review for a sufficiency of evidence claim is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”       Jackson v. Virginia , 443 U.S. 307, 319 (1979). “Such review

is < sharply limited’ and a court   < faced with a record of historical facts that

supports conflicting inferences must presume--even if it does not affirmatively

appear in the record--that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.’”       Messer v. Roberts , 74 F.3d

1009, 1013 (10th Cir. 1996) (quoting       Wright v. West , 505 U.S. 277, 296-97

(1992)). “The Court may not weigh conflicting evidence nor consider the

credibility of witnesses. Rather, the Court must        < accept the jury’s resolution of




                                              -5-
the evidence as long as it is within the bounds of reason.’”     Messer , 74 F.3d at

1013 (quoting Grubbs v. Hannigan , 982 F.2d 1483, 1487 (10th Cir. 1993)).

         Here, Magirl concedes that the prosecution demonstrated that the homes

which were the subject of the questioned counts were burglarized and that items

stolen from these homes were found in his residence. He asserts, however, that

the prosecution did not show that he was the perpetrator of these burglaries. The

district court analyzed the evidence under the appropriate test and concluded that

there was sufficient evidence to convict Magirl of the two burglary counts. We

agree.

         Because Magirl has failed to make a substantial showing of the denial of a

constitutional right, we DENY his application for a certificate of probable cause

and DISMISS this appeal.



                                                         Entered for the Court



                                                         David M. Ebel
                                                         Circuit Judge




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