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

### January 18, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NELSON R. LYNCH, Petitioner - Appellant,

vs. TIM O’DELL, Warden, Respondent - Appellee. No. 05-6229 (D.C. No. CIV-05–0150-HE) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.
Nelson R. Lynch, an inmate appearing pro se, seeks a certificate of appealability (“COA”) to appeal the district court’ s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. In order to me rit a COA, Mr. Lynch must make “a substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). To make such a showing, he must demonstrate that reasonable jurist s would find the district court’s resolution of the constitutional issue cont ained in his motion debatable or wrong. Id. ; Slack v. McDaniel , 529 U.S. 473, 484 (2000). Because Mr. Lynch has not made that showing, we deny a COA and dismis s the appeal.- 2 -

Upon negotiated pleas in four separate cases, Mr. L ynch was convicted of trafficking in illegal drugs, possession of a contr olled substance with intent to distribute (two cases), and unauthorized use of a m otor vehicle. He received fifteen years in each drug case, and ten years in t he motor vehicle case. The state applied to revoke the suspended sentences in all fo ur cases based upon commission of another offense, possession of a controlled dangerous substance with intent to distribute. When a jury acquitted M r. Lynch of this new offense, the state district court nonetheless revoked the su spended sentences, ordering them to run concurrently. The Oklahoma Court of Cr iminal Appeals (“OCCA”) affirmed. R. Doc. 15 at Ex. 2. Mr. Lynch filed fo r state post-conviction relief, which the state district court denied, and the OCCAaffirmed the denial. R. Doc. 15, Exs. 4 & 6. In his federal habeas petition, Mr. Lynch raised th e following grounds: (1) ineffective assistance of trial and appellate couns el, (2) the evidence was insufficient to revoke his suspended sentence, (3) the state was collaterally estopped from relying on the same evidence of which a jury acquitted Mr. Lynch in order to revoke, (4) the preponderance of the ev idence standard for revocation is unconstitutional, and (5) his sentence was exces sive. R. Doc. 1. The magistrate judge recommended denial of Mr. Lynch’s habeas petition, and after considering Mr. Lynch’s objections, the district co urt adopted the magistrate’s- 3 -

findings and denied Mr. Lynch habeas relief. In hi s application for COA, Mr. Lynch raises only three grounds for relief, (1) the re was insufficient evidence to revoke his suspended sentence, (2) the state was co llaterally estopped from using evidence from his acquittal to revoke his suspendedsentence, and (3) his sentence was excessive. Aplt. Form A-16, at 2. A. Sufficiency of the Evidence Mr. Lynch, on application here, concedes that the applicable standard for revoking his suspended sentence was a preponderance of the evidence. Pet. Opening Br. (Part B) at 2; see United States v. Cantley , 130 F.3d 1371, 1376 (10th Cir. 1997) (recognizing Oklahoma’s preponderance of the evidence standard); Bumgarner v. Middleton , No. 94-7003, 1995 WL 275718, at *2 (10th Cir. May 10, 1995) (unpublished); Morishita v. Morr is , 702 F.2d 207, 210 (10th Cir. 1983) (probation revocation is based on a “pre ponderance of the evidence rather than proof beyond a reasonable doubt”); Flem ing v. State , 760 P.2d 206, 207 (Okla. Crim. App. 1988) (proof required to revo ke suspended sentence is preponderance of evidence that accused violated ter ms of his suspension). The OCCA held that sufficient evidence supported the re vocation. Whether that holding is reviewed under 28 U.S.C. § 2254(d)(1) or(2), we must uphold that determination on collateral review because it is ne ither based on an unreasonable factual determination in light of evidence presente d in the state court proceedings,- 4 -

nor is it an unreasonable application of clearly es tablished federal law. Boltz v. Mullin , 415 F.3d 1215, 1230 (10th Cir. 2005) (noting thatTenth Circuit has not decided whether a sufficiency of the evidence claim presents a question of law reviewed under § 2254(d)(1) or a question of fact r eviewable under § 2254(d)(2)). Here, Officer Query testified he stopped Mr. Lynch because his vehicle had a severely cracked windshield. R. Doc. 15 at Ex. 1 1 (Tr. at 8). When the officer asked Mr. Lynch to produce a driver’s license, Mr. Lynch was unable to do so. Id. (Tr. at 9). Mr. Lynch was the only occupant of th e vehicle. Id. (Tr. at 10). After verifying that Mr. Lynch had no driver’s lice nse, the officer placed him under arrest and conducted an inventory search of M r. Lynch’s vehicle. Id. (Tr. at 11-12). Officer Query testified that he found a sm all baggie with a white rock in it under the driver’s seat. Id. (Tr. at 12-14). The white rock tested positive fo r cocaine base, or crack. Id. (Tr. at 17; 38-41). The magistrate concluded that under Oklahoma law an d in light of this standard, a reasonable fact-finder could conclude t hat Mr. Lynch possessed cocaine. We have reviewed the testimony of OfficerQuery, R. Doc. 13 at Ex. 11, and find this conclusion is not reasonably debatabl e. See United States v. CotaMeza , 367 F.3d 1218, 1223-24 (10th Cir. 2004) (there wa s sufficient evidence to find a driver of a vehicle who denied knowledge of contraband within that vehicle guilty of possession with intent to distribute), ce rt. denied , 125 S. Ct. 276 (2004).- 5 -

B. Collateral Estoppel Mr. Lynch argues that because he was acquitted of p ossession of a controlled dangerous substance with intent to distr ibute, collateral estoppel prevented the use of the evidence from that trial t o revoke his suspended sentence. The OCCA held that collateral estoppel d id not apply because no adjudication of guilt or innocence occurs upon revo cation of a suspended sentence. Rather, it is merely a determination that a violation of the suspended sentence has occurred. R. Doc. 15 at Ex. 2 at 2 (c iting Moore v. State , 644 P.2d 1079, 1081 (Okla. Crim. App. 1979)). To the extent Mr. Lynch is claiming a double jeopar dy violation, its lack of merit is not reasonably debatable. Under Oklahoma law, acquittal of a charge does not preclude use of the same evidence to revok e a suspended sentence, and such use does not constitute double jeopardy. See Moore , 644 P.2d at 1080; see also Morishita , 702 F.2d at 210. The Double Jeopardy clause prot ects against subsequent criminal prosecution for the same offens e after an acquittal has been obtained–the revocation proceeding in this case simply is not criminal prosecution to which Double Jeopardy protections apply. See Gillespie v. Hunter , 159 F.2d 410, 412 (10th Cir. 1947) (probation revocation didnot constitute double jeopardy); see also United States v. Grisanti , 4 F.3d 173, 176 (2d Cir. 1993); United States v. Hanahan , 798 F.2d 187, 189-90 (7th Cir. 1986); Standlee v.1 Mr. Lynch identifies this as a ground for relief i n his COA petition, but

makes no mention of it in his Opening Brief. For t he sake of completeness, we assume he intended to make this argument and theref ore address it. - 6 - Rhay , 557 F.2d 1303, 1305, 1307 (9th Cir. 1977).
C. Excessive Sentence 1 Sentencing issues are state law questions and are g enerally not cognizable on federal habeas review unless it is shown the sentence is “outside the statutory limits or unauthorized by law.” Dennis v. Poppel , 222 F.3d 1245, 1258 (10th Cir. 2000); Hawkins v. Hargett , 200 F.3d 1279, 1281 (10th Cir. 1999). Mr. Lynch does not challenge that his original sentences were within the statutory range. Upon revocation, Mr. Lynch was to serve all four se ntences concurrently, amounting to a total of only fifteen years on a pot ential fifty-five year sentence. Mr. Lynch has failed to show why this sentence is u nauthorized by law or outside the statutory limits. The burden is Mr. Lynch’s. See Dennis , 222 F.3d at 1258. In addition, we do not fund Mr. Lynch’s sentence gr ossly disproportionate in relation to his crimes. See Hawkins , 200 F.3d at 1282. The fact that the court reinstated his original sentence as the result of arevocation does not amount to a violation of a constitutional right. We DENY Mr. Lynch’s application for a COA and dismi ss the appeal. Entered for the Court- 7 - Paul J. Kelly, Jr. Circuit Judge