                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 JUL 8 2002
                              FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

    ERIC PAUL HERRON,

                 Petitioner - Appellant,

    v.                                                         No. 01-6301
                                                        (D.C. No. 00-CV-1135-M)
    GARY L. GIBSON,                                         (W.D. Oklahoma)

                 Respondent - Appellee.


                              ORDER AND JUDGMENT             *




Before EBEL , HOLLOWAY , and MURPHY , 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.

         Eric Paul Herron, a state prisoner appearing    pro se , seeks a certificate of

appealability (COA) in order to appeal the district court’s denial of his 28 U.S.C.


*
      This order and judgment is not binding precedent, except under the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.
§ 2254 habeas corpus petition.     See 28 U.S.C. § 2253(c)(1)(A). Because

petitioner has not “made a substantial showing of the denial of a constitutional

right,” this court denies his request for a COA and dismisses this appeal.     Id.

§ 2253(c)(2).

       Petitioner was convicted in Oklahoma state court of rape, burglary, and

robbery. Although he raised numerous claims in his § 2254 petition, he raises

only one in his application for COA. He contends the state trial judge should

have suppressed evidence he claims was gathered while he was in custody

because the state held him in custody for more than forty-eight hours without a

probable cause hearing, in contravention of the Supreme Court’s holding in

County of Riverside v. McLaughlin     , 500 U.S. 44 (1991). Petitioner raised this

Fourth Amendment suppression of evidence issue on direct appeal to the

Oklahoma Court of Criminal Appeals.

       Because petitioner had a full and fair opportunity to litigate this issue in

state court, the magistrate judge concluded that petitioner’s Fourth Amendment

claim was barred from consideration pursuant to       Stone v. Powell , 428 U.S. 465,

494 (1976) (holding that a Fourth Amendment claim is barred from federal

collateral attack in habeas proceedings where the state has provided an

opportunity for full and fair litigation of those claims). Upon     de novo review of

the magistrate judge’s report and recommendation and petitioner’s objections


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thereto, the district court adopted the report and recommendation and denied the

§ 2254 habeas petition.

      This court may issue petitioner a COA only if he “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can

make such a showing by demonstrating “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.”   Slack v. McDaniel , 529 U.S. 473, 484 (2000)

(quotation omitted). This court has closely reviewed petitioner’s application for a

COA and appellate brief, the district court’s order, and the entire record on

appeal. That review demonstrates that the district court’s resolution of

petitioner’s suppression of evidence claim is not reasonably debatable and that the

issues he seeks to present on appeal are not deserving of further proceedings.

      Accordingly, we DENY petitioner’s request for a COA and DISMISS this

appeal for substantially those reasons set out in the magistrate judge’s report and

recommendation dated June 28, 2001, as adopted by the district court’s order




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dated July 27, 2001. Petitioner’s request to proceed on appeal    in forma pauperis

is GRANTED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       William J. Holloway, Jr.
                                                       Circuit Judge




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