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  • Herron v. Gibson, 10th Cir. (2002)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Eric Paul Herron, an Oklahoma state prisoner. The court order denies Herron's request for a Certificate of Appealability and dismisses his appeal. Specifically, the court found that Herron's Fourth Amendment claim regarding suppression of evidence was barred because he had a full and fair opportunity to litigate the issue in state court. The district court had adopted the magistrate's recommendation to deny the habeas petition for substantially the same reasons.

    Original Description:

    Filed: 2002-07-08 Precedential Status: Non-Precedential Docket: 01-6301

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Eric Paul Herron, an Oklahoma state prisoner. The court order denies Herron's request for a Certificate of Appealability and dismisses his appeal. Specifically, the court found that Herron's Fourth Amendment claim regarding suppression of evidence was barred because he had a full and fair opportunity to litigate the issue in state court. The district court had adopted the magistrate's recommendation to deny the habeas petition for substantially the same reasons.

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    14 views4 pages

    Herron v. Gibson, 10th Cir. (2002)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Eric Paul Herron, an Oklahoma state prisoner. The court order denies Herron's request for a Certificate of Appealability and dismisses his appeal. Specifically, the court found that Herron's Fourth Amendment claim regarding suppression of evidence was barred because he had a full and fair opportunity to litigate the issue in state court. The district court had adopted the magistrate's recommendation to deny the habeas petition for substantially the same reasons.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUL 8 2002

    PATRICK FISHER
    Clerk

    ERIC PAUL HERRON,


    Petitioner - Appellant,
    No. 01-6301
    (D.C. No. 00-CV-1135-M)
    (W.D. Oklahoma)

    v.
    GARY L. GIBSON,
    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 courts 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 Courts 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 petitioners 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 judges report and recommendation and petitioners objections


    -2-

    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 petitioners application for a
    COA and appellate brief, the district courts order, and the entire record on
    appeal. That review demonstrates that the district courts resolution of
    petitioners 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 petitioners request for a COA and DISMISS this
    appeal for substantially those reasons set out in the magistrate judges report and
    recommendation dated June 28, 2001, as adopted by the district courts order

    -3-

    dated July 27, 2001. Petitioners 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

    -4-

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