Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
DEC 12 2002
PATRICK FISHER
Clerk
MARK D. MOLLOY,
Petitioner - Appellant,
v.
H. N. SCOTT, Warden,
No. 02-6173
D.C. No. CIV-01-1777-R
(W.D. Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-Appellant Mark D. Molloy, a state inmate appearing pro se,
seeks a certificate of appealability (COA) allowing him to appeal the district
courts order denying relief on his petition for a writ of habeas corpus pursuant to
28 U.S.C. 2254. Because Mr. Molloy has failed to make a substantial showing
of the denial of a constitutional right as required by 28 U.S.C. 2253(c)(2), we
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
**
deny his request and dismiss the appeal.

Mr. Molloy was convicted by a jury in Oklahoma state court of possession
with intent to use a substance to manufacture a controlled dangerous substance
(Count I), unlawful possession of a controlled dangerous substance with intent to
distribute (Count II), and possession of a sawed-off shotgun after former
conviction of a felony (Count III). He was sentenced to consecutive prison terms
of 35, 10 and 5 years and was fined $70,000. On direct appeal, the Oklahoma
Court of Criminal Appeals (OCCA) affirmed. I R. Doc. 8, Ex. C.
Mr. Molloy then filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. 2254 in federal district court asserting the same two claims raised before
the OCCA: (1) that the search of his residence was unlawful under the Fourth and
Fourteenth Amendments because the search warrant was invalid; and (2) that he
was subjected to double jeopardy in violation of the Fifth and Fourteenth
Amendments because he received multiple punishments for the same offense.
The magistrate judge carefully considered each of these claims and issued a
Report and Recommendation recommending that the district court deny Mr.
Molloys petition. After detailed consideration of Mr. Molloys objections, the
district court adopted the magistrate judges recommendation and denied Mr.
Molloys petition on the merits. Mr. Molloy now asserts, before us, the same
claims raised before the district court in seeking a COA.
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In order for this court to grant a COA, Mr. Molloy must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). Where,
as here, the district court has rejected the habeas petitioners constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would find
the district courts assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The claims before the district court were presented to the OCCA and were
denied by that court in a summary opinion that contained a short discussion of
each claim. As such, the district court could not properly issue a writ of habeas
corpus unless it found that the state court adjudication 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); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Further,
the fact that the OCCA denied relief to Mr. Molloy in a summary opinion has no
effect on the deference owed to the state courts result. See Aycox v. Lytle, 196
F.3d 1174, 1177 (10th Cir. 1999). It is against these standards that the district
courts denial of Mr. Molloys petition must be assessed.
In his habeas petition, Mr. Molloy argued that the search of his residence
was unlawful under the Fourth Amendment because the search warrant was
invalid. The district court concluded that it was barred from reaching the merits
-3-
of Mr. Molloys claim because he received an opportunity for full and fair
litigation of the claim in state court. See Stone v. Powell, 428 U.S. 465, 494
(1976) ([W]here 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. (footnotes omitted)).
On appeal, Mr. Molloy first asserts the district court erred in applying
Stone to bar habeas relief because he never received a full and fair opportunity to
litigate this claim in state court. Whether Mr. Molloy had a full and fair
opportunity to litigate his Fourth Amendment claim in state court is a question
this court reviews de novo. Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir.
1992). In Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978), we held
that opportunity for full and fair consideration includes, but is not limited to, the
procedural opportunity to raise or otherwise present a Fourth Amendment claim
and the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372
U.S. 293 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992). Such opportunity further contemplates recognition and at least
colorable application of the correct Fourth Amendment constitutional standards.
Gamble, 583 F.2d at 1165. Upon de novo review of the district court order and
the state court record, we agree with the district court that Mr. Molloy had a full
-4-
and fair opportunity to litigate this claim in state court. As the district court
observed, the OCCA gave thorough consideration to Mr. Molloys arguments
and to the entire record . . . on appeal, including the original record, transcripts,
and briefs. I R. Doc. 8, Ex. C at 2. Therefore, we conclude that habeas review
of Mr. Molloys Fourth Amendment claim is not available under Stone. We also
agree with the district court that Mr. Molloy has not shown he was entitled to a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
Finally, Mr. Molloy reasserts his argument that he was subjected to double
jeopardy in violation of the Fifth Amendment because he received multiple
punishments for the same offense via convictions for Counts I and II. The
Double Jeopardy Clause, among other things, protects against multiple
punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).
This protection, however, is limited to ensuring that the sentencing discretion of
courts is confined to the limits established by the legislature, for it is the
legislature that is vested with the substantive power to prescribe crimes and
determine punishments. Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus,
when a course of criminal conduct constitutes a violation of two statutory
provisions, the test to determine whether the punishments are multiple, in
violation of the Double Jeopardy Clause, is essentially one of legislative intent.
-5-
Id. In the absence of clear legislative intent, courts must apply the Blockburger
test, which states that where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact
which the other does not. Blockburger v. United States, 284 U.S. 299, 304
(1932).
Having carefully reviewed Mr. Molloys arguments, the OCCA opinion, the
magistrate judges report and recommendation, and the district courts order, we
find the reasoning of the district court persuasive and we agree that the OCCAs
conclusion was not contrary to and did not involve an unreasonable application of
clearly established federal law. We note that Peacock v. State, 46 P.3d 713 (Okla.
Crim. App. 2002) adds nothing to alter our conclusion that the conduct charged in
Count I is separate and distinct from that charged in Count II such that no double
jeopardy problem exists here.
Because Mr. Molloy has failed to show that reasonable jurists would find
the district courts assessment of his constitutional claims debatable or wrong,
and since none of Mr. Molloys claims suffice to make a substantial showing of a
denial of a constitutional right, we DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

deny his request and dismiss the appeal.

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