                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 8, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 VINCENT ERIC SCOTT,

          Petitioner-Appellant,

 v.
                                                        No. 09-3160
 ROGER WERHOLTZ, Kansas
                                             (D.C. No. 08-CV-03266-KHV-GLR)
 Secretary of Corrections; STATE OF
                                                          (D. Kan.)
 KANSAS; STEPHEN SIX, Kansas
 Attorney General,

          Respondents-Appellees.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Vincent Eric Scott, a Kansas state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the


      *
              This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1. After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
“petition”). 1 We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(c)(1)(A). Because Mr. Scott fails to make “a substantial showing of a

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

COA and dismiss the appeal.

                                   BACKGROUND

      On August 28, 1997, an officer of the Olathe Police Department observed a

white Buick Riviera leaving an apartment complex. Because the Riviera matched

the description of a vehicle seen leaving the scene of a gun-shop burglary earlier

that day, the officer conducted a records check of the vehicle. When the officer

discovered that the Riviera had an expired license tag, he radioed for back-up and

initiated a traffic stop of the Riviera.

      The officers ordered the passengers to exit the Riviera. Mr. Scott was

among those passengers and was questioned by the officers about the burglary.

While the officers questioned Mr. Scott, they noticed fresh cuts on his finger and

forearm. In a subsequent search of the vehicle, which the officers claim was

consensual, they found particles of broken glass, a hammer, a tire iron, a crowbar,

and blood stains. Based on this evidence, the officers obtained a search warrant

to procure biological samples from Mr. Scott. A DNA analysis revealed that



      1
            Mr. Scott filed a pro se application for a certificate of appealability
and opening brief. We construe these pro se filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520–21 (1972); Van Deelen v. Johnson, 497 F.3d 1151,
1153 n.1 (10th Cir. 2007).

                                           -2-
blood collected at the gun shop matched the blood sample taken from Mr. Scott.

      On June 16, 1998, in case number 98CR1568, Mr. Scott was charged with

one count of burglary, one count of felony theft, and one count of criminal

damage arising from the break-in at the gun shop. Several weeks later, law

enforcement personnel linked DNA evidence from Mr. Scott’s blood sample to

DNA evidence from an unsolved rape case. On October 21, 1998, in case number

98CR2782, Mr. Scott was charged with one count of rape and one count of

aggravated criminal sodomy.

      Mr. Scott filed motions to suppress the evidence in both cases. 2 After

holding evidentiary hearings, the trial court denied these motions. Mr. Scott

pleaded no contest to all charges in a written plea agreement but subsequently

appealed the denial of the suppression motions in both cases. The Kansas Court

of Appeals consolidated the two appeals and remanded them for proceedings to

determine if Mr. Scott’s trial counsel was constitutionally ineffective. On

      2
              Mr. Scott filed two motions to suppress in case number 98CR1568.
In the first motion, Mr. Scott sought to suppress all evidence seized pursuant to
the search of the vehicle on August 28, 1997, because the traffic stop was
pretextual and the officers lacked reasonable suspicion to search him or the
vehicle. In the second motion, Mr. Scott sought to suppress all evidence seized
pursuant to the search warrant issued and executed on January 28, 1998, because
the underlying affidavit lacked sufficient evidence to support a finding of
probable cause. This search warrant authorized the collection of biological
samples from Mr. Scott, including blood, saliva, hair, fingerprints, palm prints,
and photographs. Mr. Scott filed only one motion to suppress in case number
98CR2782. In this motion, Mr. Scott sought to suppress all evidence received
pursuant to the DNA search conducted on his blood sample, because the search
was conducted without a warrant.

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remand, the trial court appointed Mr. Scott new counsel, permitted him to

withdraw the plea, and allowed him to reargue the motions to suppress. 3 The trial

court held hearings and again denied the motions to suppress. The trial court

tried the cases on stipulated facts, found Mr. Scott guilty of burglary, rape, and

aggravated sodomy, and sentenced him to 300 months’ imprisonment.

      Mr. Scott appealed his convictions. He argued that the trial court erred in

denying his motions to suppress because the evidence was obtained in violation of

the Fourth Amendment. On May 2, 2003, the Kansas Court of Appeals affirmed

Mr. Scott’s conviction. On July 9, 2003, the Kansas Supreme Court denied

review.

      In mid-2004, Mr. Scott filed several motions for post-conviction relief

under the Kansas habeas corpus statute, Kan. Stat. Ann. § 60-1507. On February

15, 2005, the trial court denied relief. On appeal, Mr. Scott argued, among other

things, that his counsel on direct appeal was ineffective for failing to argue that

the Fourth Amendment prohibited the comparison of DNA evidence obtained in

his burglary case with DNA evidence collected in unsolved rape cases. On

November 21, 2007, the Kansas Court of Appeals affirmed. On May 28, 2008,

the Kansas Supreme Court denied review.

      3
             On remand, Mr. Scott supplemented his prior motions to suppress
with two revised motions. In case number 98CR1568, Mr. Scott sought to
suppress all evidence seized pursuant to the search warrant issued and executed
on January 26, 1998. In case number 98CR2782, Mr. Scott sought to suppress all
evidence seized pursuant to the search of the vehicle on August 28, 1997.

                                         -4-
      On October 20, 2008, Mr. Scott filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 in the U.S. District Court for the District of Kansas. The

district court construed this petition as raising five claims: (1) the trial court

erred in receiving evidence seized in violation of the Fourth Amendment; (2) the

trial court did not appoint counsel for post-conviction proceedings; (3) the trial

counsel was ineffective by allowing him to be convicted on stipulated facts; (4)

the appellate counsel was ineffective by not arguing that the comparison of his

DNA samples to DNA samples in unrelated crimes violated the Fourth

Amendment; and (5) the state courts lacked jurisdiction because of a procedural

defect in the original complaint. The district court denied the petition. This

application for a COA followed.

                                    DISCUSSION

      “A COA is a jurisdictional pre-requisite to our review.” Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537

U.S. 322, 336 (2003)). A COA will issue only “‘if the applicant has made a

substantial showing of the denial of a constitutional right.’” United States v.

Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)).

This standard requires an applicant to demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal


                                          -5-
quotation marks omitted).

      In determining whether to grant a COA, we need not engage in a “full

consideration of the factual or legal bases adduced in support of the claims.” Id.

We instead undertake “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each claim. Id. at 338. Although an applicant is

not required to demonstrate that his appeal will succeed, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (internal quotation marks omitted).

      Mr. Scott argues that the Kansas trial court erred in denying his motion to

suppress evidence under the Fourth and Fourteenth Amendments. 4 “[A] state

prisoner may not be granted federal habeas relief on the ground that evidence was

obtained in an unconstitutional search or seizure so long as the State ‘provided an

opportunity for full and fair litigation’ of Fourth Amendment claims.” Matthews

v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009) (quoting Stone v. Powell, 428

U.S. 465, 494 (1976)). “We review de novo whether a petitioner had an

      4
             Mr. Scott also claims that “the failure to suppress . . . evidence
violated [his] Sixth Amendment right to receive a fair trial.” Application for
COA at 2 (filed Aug. 5, 2000). This claim is more properly viewed as an
assertion of his Fourth Amendment rights than as a Sixth Amendment claim.
Thus, we treat this claim as part of the Fourth Amendment claims.

       Mr. Scott appears to have abandoned his ineffective assistance of counsel
claims on appeal. To the extent that the appellate filings may be construed as
raising an ineffective assistance of counsel claim based upon the appellate
counsel’s failure to challenge the collection and use of his DNA evidence, the
district court’s resolution of this issue is not reasonably debatable.

                                          -6-
opportunity for full and fair litigation of his or her Fourth Amendment claim in

state court.” Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (citing

Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992)).

      We have reviewed Mr. Scott’s appellate filings, the federal district court’s

order, the entire record, and the applicable law. Based upon this review, we have

determined that Mr. Scott had a full and fair opportunity to litigate his Fourth

Amendment claims. He raised these Fourth Amendment claims in multiple

motions to suppress and received an evidentiary hearing on each motion. Mr.

Scott also presented many of these claims on direct appeal to the Kansas Court of

Appeals. Furthermore, on post-conviction review, the Kansas Court of Appeals

rejected Mr. Scott’s ineffective assistance of counsel claim in part because it

found the argument to suppress the DNA evidence to be without merit. Scott v.

Werholtz, 171 P.3d 646, 653 (Kan. Ct. App. 2007). The federal district court

applied the proper law to the habeas petition, and its denial of the petition is not

reasonably subject to debate. Mr. Scott also has not raised any claims that are

adequate to deserve further proceedings. Thus, we conclude that Mr. Scott has

not “made a substantial showing of the denial of a constitutional right” and is not

entitled to a COA.




                                          -7-
                              CONCLUSION

     For the foregoing reasons, we DENY Mr. Scott’s application for a COA

and DISMISS his appeal.



                            ENTERED FOR THE COURT


                            Jerome A. Holmes
                            Circuit Judge




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