We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 1

F.3d 1183, 1187 (10th Cir. 2003).

F I LED

United States Court of Appeals

Tenth Circuit

August 1, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN L. McKINNEY,

Petitioner - Appellant,

v.

DISTRICT ATTORNEY, ARAPAHOE

COUNTY; KEN SALAZAR, Attorney

General of the State of Colorado,

Respondents - Appellees.

No. 05-1435

(D. Colorado)

(D.Ct. No. 04-CV-1520-WDM-PAC)

ORDER DENYING LEAVE TO PROCEED

ON APPEAL IN FORMA PAUPERIS, 

DENYING CERTIFICATE OF APPEALABILITY,

AND DISMISSING APPLICATION

Before HENRY, BRISCOE, and O’BRIEN, 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.

Kevin L. McKinney, a state prisoner proceeding pro se, seeks a certificate 1
 McKinney was convicted of attempted first degree murder after deliberation, 2

conspiracy to commit attempted first degree murder after deliberation, second degree

kidnaping, two counts of second degree assault, two counts of aggravated robbery,

conspiracy to commit aggravated robbery and first degree assault.

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of appealability (COA) to allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude McKinney has failed to make “a substantial

showing of the denial of a constitutional right,” we deny his request for a COA

and dismiss his application. 28 U.S.C. § 2253(c)(2).

McKinney was convicted following a jury trial of multiple counts stemming

from a 1999 armed robbery of a grocery store in Arapahoe County, Colorado.2

He was sentenced to 216 years imprisonment. The Colorado Court of Appeals

affirmed his conviction and the Colorado Supreme Court denied certiorari.

McKinney then filed a habeas corpus petition in the United States District Court

for the District of Colorado, alleging a due process violation because he was

convicted on evidence seized as the result of an illegal vehicle stop. The district

court referred the matter to a magistrate judge, who recommended the petition be

denied because McKinney had a full and fair opportunity to litigate his claim in

state court, and as a result, the court was precluded from considering the matter.

After reviewing McKinney’s objections, the district court adopted the magistrate

judge’s recommendation and denied the petition. The district court also denied

McKinney’s application for a COA and his motion to proceed in forma pauperis.
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A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). This court can issue a COA “only if the

applicant has made 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

constitutional claims on the merits, “[t]he petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The district court found the Supreme Court’s decision in Stone v. Powell

barred McKinney’s claim. 428 U.S. 465 (1976). In Stone, the Court held that

“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.” Id. at 481-82. In

Gamble v. Oklahoma, we held such opportunity “includes, but is not limited to,

the procedural opportunity to raise or otherwise present a Fourth Amendment

claim,” a full and fair evidentiary hearing and “recognition and at least colorable

application of the correct Fourth Amendment constitutional standards.” 583 F.2d

1161, 1165 (10th Cir. 1978).

In this case, McKinney filed a pretrial motion to suppress, raising the issue

of whether there was probable cause to stop the vehicle in which he was a

passenger. The trial court held an evidentiary hearing, during which several
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police officers testified. The trial court ruled there was probable cause to arrest

McKinney and denied the suppression motion. The Colorado Court of Appeals

upheld the trial court’s ruling, finding “the combination of facts known to all

officers involved provided a sufficient basis for the investigatory stop and

subsequent arrest and search.” People v. McKinney, No. 00-CA-1388, slip op. at

5 (Colo. Ct. App. Jan. 17, 2002). The record clearly demonstrates McKinney had

multiple opportunities to fully and fairly litigate his Fourth Amendment claim,

and the state courts applied the correct constitutional standards in ruling on the

issue.

McKinney has failed to show that reasonable jurists would find the district

court’s assessment of his constitutional claims debatable or wrong. Accordingly,

McKinney’s request for a COA is DENIED and his application is DISMISSED. 

In addition, we agree with the district court that McKinney has not presented a

reasoned, nonfrivolous argument on appeal, and thus this appeal is not taken in

good faith. See 28 U.S.C. § 1915(a)(3). McKinney’s motion to proceed in forma

pauperis is DENIED. McKinney is directed to remit the full amount of the filing

fee within twenty days.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge