                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 19 2003

                                TENTH CIRCUIT                       PATRICK FISHER
                                                                             Clerk


 LARRY ALLEN MACPHALE,

          Petitioner - Appellant,

 v.
                                                       No. 02-1426
 HONORABLE ROBERT C. TOBIAS;                        D.C. No. 01-D-2276
 COUNTY COURT OF ARAPAHOE                             (D. Colorado)
 COUNTY, COLORADO; ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

          Respondents - Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


      Larry Allen MacPhale was convicted in state court on five counts of

violating Colorado law regarding unlicenced motor vehicle dealers. His

conviction was affirmed on appeal, and the Colorado Supreme Court denied his

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
petition for writ of certiorari. In this federal habeas action, Mr. MacPhale

claimed that his Sixth Amendment right to counsel was violated and that he was

denied due process. The district court granted his petition on the Sixth

Amendment assertion, but denied the due process claim. In granting Mr.

MacPhale’s Sixth Amendment claim, the district court held he was entitled to

resentencing. Mr. MacPhale has since been resentenced and that sentence has

been stayed pending the outcome of this appeal. On appeal, Mr. MacPhale

contends his due process rights were violated because insufficient evidence

existed to convict him of being a motor vehicle dealer. Because Mr. MacPhale

does not make “a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), we deny his request for a Certificate of Appealability (COA)

and dismiss the appeal.

      A writ of habeas corpus will not be issued on a state claim adjudicated on

the merits unless the claim “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,” 28 U.S.C. § 2254(d)(1),

or was “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. at § 2254(d)(2). “[A] determination

of a factual issue made by a State court shall be presumed to be correct.” 28

U.S.C. § 2254(e)(1). Tenth Circuit authority is divided as to “whether, under


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AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination

under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).”

Romano v. Gibson, 239 F.3d 1156, 1164 n.2 (10th Cir.), cert. denied, 534 U.S.

1045 (2001) (listing cases). Under either standard, Mr. MacPhale’s claim fails.

      In examining Mr. MacPhale’s sufficiency of the evidence claim, the

appropriate inquiry 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). In rejecting Mr. MacPhale’s claim, the state court did

not rely on the Jackson standard but instead noted

      [t]he issue before the trial judge is whether the relevant evidence
      both direct and circumstantial, when viewed as a whole and in the
      light most favorable to the prosecution, is substantial and sufficient
      to support a conclusion by a reasonable mind that the defendant is
      guilty of the charge beyond a reasonable doubt.

Aplt. Appx., doc. 4 at 5 (citing People v. Bennett, 515 P.2d 466, 469 (1973)).

The Colorado Supreme Court has determined that Bennett is in accord with

Jackson’s sufficiency of the evidence due process standard. See People v.

Gonzales, 666 P.2d 123, 127 (Colo. 1983). In accordance with the deference

required by § 2254(d), we hold the state court’s denial of Mr. MacPhale’s habeas

petition was not contrary to nor an unreasonable application of Jackson.

      Mr. MacPhale was found guilty of acting as a motor vehicle dealer without


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a licence under Colorado Revised Statute § 12-6-120(2). The statute dictates “[i]t

is unlawful for any person to act as a motor vehicle dealer . . . [or a] used motor

vehicle dealer . . . unless such person has been duly licensed under the provisions

of this part 1 . . . .” Id. § 12-6-120(2). A motor vehicle dealer is one “who is

engaged wholly or in part in the business of selling new or new and used motor

vehicles.” Id. § 12-6-102(13). Likewise, the

      sale of three or more new or new and used motor vehicles or the
      offering for sale of more than three new or new and used motor
      vehicles at same address or telephone number in any one calendar
      year shall be prima facie evidence that a person is engaged in the
      business of selling new or new and used motor vehicles.

Id. Mr. MacPhale argues there was insufficient evidence to find him guilty of

acting as a motor vehicle dealer without a licence because he did not sell any new

vehicles.

      In rejecting Mr. MacPhale’s claim, the state court pointed out that “[t]he

definition of Motor Vehicle Dealer refers to ‘new or new and used motor

vehicle[s]’ [and] . . . it also speaks of ‘in whole or in part.’” Aplt. Appx., doc. 4

at 3. It is undisputed that the jury heard evidence that Mr. MacPhale offered or

attempted to sell more than three used vehicles from his home over a period of a

year. Both the state court and the federal district court agreed it would have been

preferable to instruct the jury on the definition of a used motor vehicle dealer, see

Colo. Rev. Stat. § 12-6-102(17) (“The sale of three or more used motor vehicles


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or the offering for sale of more than three used motor vehicles at the same address

or telephone number in any one calendar year shall be prima facie evidence that a

person is engaged in the business of selling used motor vehicles.”). However, we

also concur with their assessment that the absence of such an instruction did not

violate Mr. MacPhale’s constitutional right to due process. The statute under

which Mr. MacPhale was convicted clearly includes within its scope “used motor

vehicle dealers.” See Colo. Rev. Stat. § 12-6-120(2). Therefore, the state court

correctly determined that a rational trier of fact, when considering the undisputed

evidence in favor of the prosecution, would have found the essential elements of

the crime proven beyond a reasonable doubt.

      Because Mr. MacPhale’s claim fails to make “a substantial showing of the

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

DENIED and his appeal DISMISSED.



                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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