* 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 ordered submitted w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment 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 

### JAN 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
MICHAEL LYNN CALDWELL, Petitioner - Appellant, v. GLYNN BOOHER, Warden, Respondent - Appellee. No. 02-6242 D.C. No. CIV-02-223-C (W.D. Oklahoma)

ORDER AND JUDGMENT *
Before EBEL , LUCERO and O’BRIEN , Circuit Judges. In February 2000, Petitioner-Appellant Michael LynnCaldwell was convicted in Oklahoma state court of one count of P ossession of a Controlled and Dangerous Substance with Intent to Distribute. A s earch of Caldwell’s home pursuant to a warrant revealed more than 200 grams of marijuana, almost 2 grams of marijuana seeds, and four scales. He was senten ced to twelve years in prison- 2 -

and fined $40,000. After direct review in state co urt that affirmed his conviction, Caldwell filed a petition for a writ of habeas corp us pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Consistent with a magistrate’s Report and Recommend ation, which the district court affirmed in its entirety over Caldwell’s obje ctions, the district court denied Caldwell’s habeas petition. The district court als o denied Caldwell a certificate of appealability and his motion to conduct his appe al in forma pauperis
. Proceeding pro se, Caldwell filed a motion with thi s court to conduct this appeal in forma pauperis , applies for a certificate of appealability, and appeals the dismissal of his petition for a writ of habeas corp us. In his habeas petition, Caldwell made eight claims: (1) that evidence was seized from his home in violation of both the Fourt h Amendment of the United States Constitution and Section 30 of the Oklahoma Constitution; (2) that the prosecution impermissibly introduced evidence of hi s arrest in violation of state law and the federal constitution; (3) that the intr oduction of hearsay testimony violated state evidence rules and his federal const itutional right to confront the witnesses against him; (4) that the prosecutor enga ged in misconduct by referring to facts not in evidence in closing argument; (5) t hat he suffered from ineffective assistance of counsel at trial; (6) that the bailif f had improper contact with the jury during trial; (7) that his sentence is excessi ve; and (8) that cumulative errors- 3 -

entitle him to habeas relief. In his appeal to us, Caldwell challenges the district court’s denial of all of these claims except claims (6) and (7). We conclude that Caldwell’s Fourth Amendment claims are foreclosed by Stone v. Powell , 428 U.S. 465, 494 (1976), which holds that habeas relief is unavailable for Fourth Amendment violations when th e petitioner had a full and fair opportunity to litigate such claims below. Se e also Smallwood v. Gibson , 191 F.3d 1257, 1265 (10th Cir. 1999). Caldwell’s o ther claims are without merit, involve claims under state law that are not reviewa ble in a federal habeas proceeding, see, e.g. , Davis v. Reynolds , 890 F.2d 1105, 1109 n.3 (10th Cir. 1989) (“Alternative claims, whether grounded in state statutes or the State Constitution, are not cognizable under 28 U.S.C. § 2254(a).”), or are nonreversible, harmless errors. Accordingly, for substantially the reasons stated i n the magistrate’s Report and Recommendation, we DENY a certificate of appealability and DISMISS the appeal. Caldwell’s motion to proceed in forma paup eris is GRANTED
.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge