* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JAN 16 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM EDGAR BENSLEY, Petitioner - Appellant, vs. STEPHEN KAISER, Respondent - Appellee. No. 00-5130 (D.C. No. 97-CV-559-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **

William Edgar Bensley seeks to appeal from the deni al of his habeas petition, 28 U.S.C. § 2254. Mr. Bensley was convic ted in Oklahoma of possession of marijuana, after former conviction of two or more felonies (receiving 30 years); possession of methamphetamine , after former conviction of two or more felonies (receiving 50 years), and poss ession of drug paraphernalia- 2 -

(receiving 1 year in the county jail and a $1,000 f ine). In his application for a certificate of appealability, he claims that the fe deral district court erred in holding his Fourth Amendment claim barred by Stone v. Powell , 428 U.S. 465 (1976). Under Stone v. Powell , a Fourth Amendment claim is barred from federal collateral attack in habeas proceedings where the S tate has provided an opportunity for full and fair litigation of those claims. Id. at 494. Relying on Michigan v. Long , 463 U.S. 1032 (1983), Mr. Bensley argues that the merits of his Fourth Amendment claim should have been decidedbecause the Oklahoma courts relied upon state and federal law. Aplt. Br. at A-15. Michigan v. Long , a certiorari appeal from a state’s highest court, has nothing to do with this habeas

case. Mr. Bensley has not made the requisite “substantial showing of the denial of a constitutional right” to obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000). Mr. Bensley is seeking federal habeas review of a claim he raised before the OCCA, specifically, that the officers who detained him lacked reasonabl e suspicion or probable cause, and that the evidence obtained thereafter was the f ruit of an unlawful detention. A review of the record indicates that Mr. Bensley r aised this issue while seeking dismissal of the state prosecution for lackof probable cause or suppression of all evidence obtained from the searc h. Doc. 3, Ex. D. After an- 3 -

evidentiary hearing on the motion to dismiss, the s tate trial court rejected the Fourth Amendment claim, finding: “[p]olice officers have a right and duty to investigate unusual and suspicious behavior,” even without probable cause; that “walking down the middle of a road in a lane of tra ffic at 1:43 a.m.,” as Mr. Bensley was doing when he encountered the officers, was “unusual activity”; and that Mr. Bensley displayed additional “unusual and suspicious behavior” when he approached the police car, answered two questions, and then ran away, throwing things as he ran. Doc. 3, Ex. E. at 107. The tria l court denied the motion to suppress after hearing the officers’ testimony at trial. Doc. 3, Ex. A at 5 (citing Tr. at 207-08). In a summary opinion, the OCCA rej ected Mr. Bensley’s claim on direct appeal that his “convictions should be dismi ssed, because the evidence on which they depend was the fruit of an illegal deten tion by the officers with absolutely no reasonable suspicion for detaining [h im], much less pursuing him.” Doc. 3, Ex. C at 1. The OCCA rejected Mr. Bensley’ s request for more specific findings. It is apparent that the state trial judge’s Fourth Amendment ruling was premised on an analysis of the encounter as either: a consensual stop, see Florida v. Bostick , 501 U.S. 429, 434 (1991) (individualized suspicio n not required for consensual encounter), succeeded by flight and aban donment of personal property, see Illinois v. Wardlow , 528 U.S. 119, 124-25 (2000) (flight may- 4 -

provide reasonable suspicion) ; or a non-consensual stop based on reasonable suspicion, see Terry v. Ohio , 392 U.S. 1, 21-22 (1968) (stop may be justified b y reasonable suspicion that falls short of probable c ause), also succeeded by flight and abandonment of personal property. See also California v. Hodari D. , 499 U.S. 621, 626, 629 (1991) (holding that where polic e ask defendant to stop, defendant flees, and police pursue, no seizure has occurred and contraband dropped during the pursuit is deemed abandoned, not the fruit of a seizure); id. at 624 (noting that abandonment of contraband during p ursuit, at least if recognized by the police as contraband, may provide reasonable suspicion for a subsequent seizure). Either theory would support Mr. Bensley’ s detention, his subsequent arrest on probable cause, and the constitutionally permissible searches of his person incident to that arrest. Though the OCCA co uld have said more on direct appeal, in view of the record, we believe that Mr. Bensley received a full and fair opportunity to litigate his claim. See Gamble v. State , 583 F.2d 1161, 1165 (10th Cir. 1978) (opportunity for full and fair litigation in state court under Stone v. Powell includes opportunity to raise Fourth Amendment cla im, full and fair evidentiary hearing, and recognition and applicatio n of correct Fourth Amendment standards). Moreover, in view of the state trial court’s findings implicitly affirmed by the OCCA, Mr. Bensley’s coll ateral attack would be1 If a claim was adjudicated on the merits by a state court, a petitioner will

be entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supre me Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). Federal habeas relief may only be gr anted where “the state court arrived at a conclusion opposite to that reached bythe Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case." Va n Woudenberg v. Gibson , 211 F.3d 560, 566 (10th Cir. 2000) (citing Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000)). - 5 - doomed by the requirements of § 2254(d). 1 We DENY a certificate of appealability and DISMISS the appeal. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge