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Petitioner - Appellant,


RON WARD, Director of Oklahoma Department of Corrections, OKLAHOMA DEPARTMENT OF CORRECTIONS, and STATE OF OKLAHOMA,

Respondents - Appellees.

No. 02-6056

(D.C. No. 01-CV-1695-A)

(W.D. Oklahoma)


Before EBEL, LUCERO, and HARTZ, Circuit Judges.

Petitioner-Appellant Arthur D. Miller, Jr. brings this § 2254 pro se appeal challenging his conviction for possession of marijuana in a penal institution after former conviction of a felony. In his habeas petition, Mr. Miller challenged his conviction on only one ground: sufficiency of the evidence. The magistrate judge recommended that his petition be denied on the merits. After considering Mr. Miller's timely objections to the magistrate's recommendation, the district court adopted the magistrate's recommendation and denied the petition. This appeal followed.

During a search of the cell that Mr. Miller shared with his cellmate, Eric Thompson, prison authorities found five small packages of marijuana. (Mag. Ord. at 2.) Some of the marijuana was found hidden within Mr. Miller's knitted remote control cover, which was sitting on his bunk. (Tr. I at 86.) Prison officials also discovered marijuana in clothing worn by Mr. Thompson. (Mag. Ord. at 2.)

At trial, a corrections officer testified that Mr. Miller told him several months after the search that Mr. Miller and Mr. Thompson had obtained the marijuana in the prison yard. (Tr. II at 16-17.) At trial, Mr. Thompson testified that Mr. Miller had smoked marijuana with him in their cell prior to the search. (Tr. II at 59.) Prior to trial, however, Mr. Thompson had sworn in an affidavit that the marijuana belonged to him, and that Mr. Miller had not known that it was in the remote control cover. (Aplt Br., Doc. A; Tr. II at 43-44.) Before the magistrate judge, Mr. Miller argued that this contradiction in Mr. Thompson's sworn statements meant that there was insufficient evidence from which a jury could have found Mr. Miller guilty of knowing possession. After a thorough analysis, the magistrate judge rejected Mr. Miller's argument, and the district court adopted the magistrate judge's findings and recommendation.

For substantially the reasons stated by the magistrate judge and district court, we DENY Mr. Miller's application for a COA and DISMISS this appeal.


David M. Ebel

Circuit Judge

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*.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 ordered submitted without oral argument. 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.

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