* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 o ral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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 ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 19 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY ALLEN MACPHALE, Petitioner - Appellant,

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



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
Larry Allen MacPhale was convicted in state court o n five counts of violating Colorado law regarding unlicenced motor v ehicle dealers. His conviction was affirmed on appeal, and the Colorado Supreme Court denied his-2-

petition for writ of certiorari. In this federal h abeas action, Mr. MacPhale claimed that his Sixth Amendment right to counsel w as violated and that he was denied due process. The district court granted his petition on the Sixth Amendment assertion, but denied the due process cla im. In granting Mr. MacPhale’s Sixth Amendment claim, the district court held he was entitled to resentencing. Mr. MacPhale has since been resenten ced and that sentence has been stayed pending the outcome of this appeal. Onappeal, Mr. MacPhale contends his due process rights were violated becau se insufficient evidence existed to convict him of being a motor vehicle dea ler. 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 Cert ificate 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 es tablished Federal law, as determined by the Supreme Court of the United State s,” 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 p resumed to be correct.” 28 U.S.C. § 2254(e)(1). Tenth Circuit authority is d ivided as to “whether, under-3-

AEDPA, we review a sufficiency-of-the-evidence issu e as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding u nder § 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 evid ence claim, the appropriate inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, anyrational 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. MacPhal e’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 r elevant evidence both direct and circumstantial, when viewed as a wh ole 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 Bennettis 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 wi th the deference required by § 2254(d), we hold the state court’s de nial of Mr. MacPhale’s habeas petition was not contrary to nor an unreasonable ap plication of Jackson

. Mr. MacPhale was found guilty of acting as a motor vehicle dealer without-4-

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 vehicl e dealer . . . [or a] used motor vehicle dealer . . . unless such person has been du ly 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 sellin g 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 veh icles or the offering for sale of more than three new or new andused motor vehicles at same address or telephone number in anyone calendar year shall be prima facie evidence that a person is engaged in the business of selling new or new and used motor vehic les. Id. Mr. MacPhale argues there was insufficient eviden ce 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 o r 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 evidenc e that Mr. MacPhale offered or attempted to sell more than three used vehicles fro m his home over a period of a year. Both the state court and the federal distric t court agreed it would have been preferable to instruct the jury on the definition o f a used motor vehicle dealer, see Colo. Rev. Stat. § 12-6-102(17) (“The sale of three or more used motor vehicles-5-

or the offering for sale of more than three used mo tor 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 m otor 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 w ithin its scope “used motor vehicle dealers.” See Colo. Rev. Stat. § 12-6-120(2). Therefore, the st ate court correctly determined that a rational trier of fact, when considering the undisputed evidence in favor of the prosecution, would have fo und the essential elements of the crime proven beyond a reasonable doubt. Because Mr. MacPhale’s claim fails to make “a subst antial 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