UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JAMES WILLIAM LOVELACE, Petitioner–Appellant,

v. BRUCE HOWARD, Warden, Defendant–Appellee. No. 10-7072 (D.C. No. 6:07-CV -00224-RAW-KEW) (E.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , EBEL , and LUCERO , Circuit Judges.

James Lovelace, a state prisoner proceeding pro se, 1 seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We determine that Lovela ce is not entitled to a COA and dismiss the appeal on that basis.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We liberally construe Lovelace’s plea dings because he proceeds pro se. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### November 15, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I On April 10, 1999, a LeFlore County, Oklahoma, Deputy Sheriff asked David Hope, a Heavener, Oklahoma, police officer, to investigate a suspicious vehicle parked at a rural home outside Heavener. The office r overtook the car, driven by Lovelace, on a road near the home. Because Lovelace was driving w ith a suspended license, Hope arrested him and patted him down before ha ndcuffing him and putting him in the back seat of the patrol car. That pat-down uncover ed a knife and a syringe. About forty-five minutes later, a county Deputy Sheriff arrived on the scene. The de puty searched Officer Hope’s patrol car, finding a vi al wrapped in black tape u nder the back seat. It was ultimately confirmed to contai n methamphetamine. The office rs also searched Lovelace more thoroughly, and found two more syringes. One of the sy ringes later tested positive for the presence of methamphetamine. Lovelace was tried and convicted of methamphetamine possession in Oklahoma state court. After unsuccessfully pursuing st ate direct appeal and collateral review, he filed a § 2254 petition in federa l court, alleging: (1) insu fficient evidence ; (2) unlawful search; (3) unlawful arrest; (4) excessive se ntence; and (5) ineffective assistance of appellate counsel. The district court denied habeas relief and denied Lovelace’s request for a COA. Lovelace now seeks a COA to ap peal only the sufficiency of the evidence and ineffective assistance determinations.- 3 - II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. 28 U.S.C. § 2253(c)(1)( A). To obtain a COA, Lovelace must demonstrate “that reasonable jurists could debate whether (or, for that matter, agre e that) the [§ 2254] petition should have been resolv ed 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) (quotations omitted). To pr evail on his § 2254 habe as petition, Lovelace must show the state court’s adjudication of hi s claim either “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented” or was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1), (2). A Lovelace’s first argument is that there wa s insufficient eviden ce to support his conviction. On appeal, evidence will only be determ ined insufficient if no “rational trier of fact could have found the essential elem ents of the crime beyond a reasonable doubt” when viewing the evidence “in the light most favorable to the prosecution.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Lovelace argues “there is absolutely NO connection” between him and the methamphetamine found during his arrest. He e xplains that he was searched before being placed in the patrol car, but the vial of dr ugs was only found much later on the floor of- 4 - the patrol car, and at least one other arrestee had been in the patr ol car the day of his arrest. Perhaps Lovelace’s cont ention would hold water if th e officers arresting him had not also found a syringe containing methamphe tamine in his pocket. The statute under which he was convicted has no minimum th reshold amount for possession—it prohibits possessing any methamphetamine. See Okla. Stat. tit. 63, § 2-402; see also Spriggs v.
State , 511 P.2d 1139, 1143 (Okla. Crim. App. 1973) (“[P]ossession of a modicum of an illegal drug is sufficient to bring the defenda nt within the purview of the statute.” (quotation omitted)). And evid ence that the syringe contained methamphetamine was presented to the jury. We ne ed not inquire into the vial evidence Lovelace disputes, because a rational trier of fact could have fo und the syringe evidence sufficient to prove possession beyond a reasonable doubt.
B Before trial, Lovelace’s counsel filed a motion seeking to test the vial of methamphetamine found in the patrol car. Th e trial court did not rule on the motion until Lovelace’s counsel reminded the court about th e motion on the day of trial. The court denied the motion and counsel did not object . Lovelace contends this was ineffective assistance, and that his appellate counsel’s fa ilure to argue as much was itself ineffective assistance. Counsel provides ineffective assistance when his represen tation does not meet “an objective standard of reasonableness” and “the re is a reasonable probability that, but for- 5 - counsel’s unprofessional errors, the result of the proceeding would ha ve been different. A reasonable probability is a probability su fficient to undermin e confidence in the outcome.” Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). Lovelace’s entire ineffective assistance claim rela tes to the vial of methamphetamine. But, as discussed above, he was also found in possession of methamphetamine in one of the syringes. Regardless of trial counsel’s actions with resp ect to the vial, the syringe evidence would have been before the jury. There is no reasonable prob ability that the trial would have resulted in a different outcome, and thus there was no prejudice.
III Regarding both the sufficiency of evidence claim and the ineffective assistance of counsel claim, reasonable jurists could not deba te whether the district court should have resolved Lovelace’s § 2254 petition differently. Cf. Slack , 529 U.S. at 484. We therefore DENY a COA and DISMISS the appeal. Because Lovelace has failed to advance “a reasoned, nonfrivolous argument on th e law and facts in support of the issues raised on appeal,” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991), we DENY his motion to proceed in forma pauperis.

Entered for the Court

Carlos F. Lucero Circuit Judge