UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM GARDNER,

Petitioner-Appellant,

v.

JAMES JANECKA, Warden, Lea County Correctional Center; and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.	No. 05-2225

(D.C. No. CIV-041235 JB/ACT)

(D. N.M.)

ORDER

Before KELLY, LUCERO, and McKAY, Circuit Judges.

William Ray Gardner, a New Mexico state prisoner proceeding pro se, requests a certificate of appealability ("COA") to appeal the denial of his 28 U.S.C. § 2254 petition. For substantially the same reasons set forth by the district court, we DENY Gardner's request for a COA and DISMISS.

Gardner is currently serving a twelve-year sentence for a third degree felony and two fourth degree felonies, and for being a habitual offender. He conditioned his no contest plea on his right to appeal the denial of a motion to suppress evidence allegedly obtained in violation of his Fourth Amendment rights. The New Mexico Court of Appeals affirmed the trial court's decision, and the New Mexico Supreme Court denied certiorari. Gardner's petition for state post-conviction relief was also denied. He then filed the instant § 2254 petition reasserting his Fourth Amendment claim. The district court denied Gardner's petition and his subsequent application for COA. He now seeks a COA from this court.1

Under Stone v. Powell, 428 U.S. 465, 482 (1976), "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Both the state trial court and court of appeals applied the appropriate Fourth Amendment standards to Gardner's argument and found that the challenged search was reasonable. Under such circumstances, we are precluded from reviewing the state court decision. See Gamble v. Oklahoma, 583 F.2d 1161, 1165 & n.3 (10th Cir. 1978) (federal courts may review Fourth Amendment claims in habeas corpus proceedings only where "the state court wilfully refuses to apply the correct and controlling constitutional standards,"or where the state court application of the federal standard is "so unconscionable as to deny a defendant the opportunity for full and fair litigation"). His application for a COA is therefore DENIED and the appeal is DISMISSED. Gardner's motion for appointment of counsel is also DENIED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge