* 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 This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel.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 

### April 11, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FLOYD STRICKLAND, Petitioner - Appellant, v. SCOTT ABBOTT, Warden, Wyoming State Penitentiary, Respondent - Appellee. No. 05-8062 (D.C. No. 04-CV-330-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before HARTZ , EBEL , and TYMKOVICH , Circuit Judges.
Floyd Strickland was convicted in Wyoming state cou rt of two counts of arson. The district court denied both Mr. Strickla nd’s 28 U.S.C. § 2254 petition for a writ of habeas corpus and his request for a c ertificate of appealability (“COA”) to appeal the denial of his § 2254 petition . He now seeks a COA from1 Although the original sentence also recommended that Strickland not be

allowed to return to Natrona County should he be re leased prior to full service of his sentence, the Wyoming Supreme Court found that portion of the sentence to be unlawful. Strickland , 94 F.3d at 1050–51.

2 The standard for federal habeas review is set out i n § 2254: An application for a writ of habeas corpus on behal f of a person in custody pursuant to the judgment of a State court s hall not be granted with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim . . . resulted in a decision that was contrary to, or involved an unr easonable application (continued...) - 2 - this court. For substantially the same reasons setforth by the district court, we DENY a COA and DISMISS this appeal. In June 2001, Mr. Strickland was convicted of both first- and seconddegree arson in relation to a fire that damaged the basement of his home. See Wyo. Stat. Ann. §§ 6-3-101, -102 (2005). He was se ntenced to serve concurrent terms of between 120 and 216 months on the count of first-degree arson and between 60 and 108 months on the count of second-de gree arson. On direct appeal, Mr. Strickland asserted thirteen points of error, but the Wyoming Supreme Court affirmed his conviction and sentence. Strick land v. State , 94 P.3d 1034 (Wyo. 2004). 1
Mr. Strickland then filed a pro se 28 U.S.C. § 2254 petition in federal district court, asserting that the Wyoming Supreme Court’s decision is contrary to, or involved the unreasonable application of, Un ited States Supreme Court case law. 2 Mr. Strickland asserted causes for relief based o n: his Fifth Amendment2 (...continued)

of, clearly established Federal law, as determined by the Supreme Court of the United States . . . . 28 U.S.C. § 2254(d). - 3 - right against double jeopardy, his Fourth Amendmentrights, his Sixth Amendment right to effective counsel, and his Fifth and Sixth Amendment rights to due process and a fair trial. Applying the standard given in § 2254, the district court denied relief on all four grounds. It first concluded that the Wyoming Supreme Court did not unreasonably deny Mr. Strickland’s double jeopardy claim because, in Wyoming, first- and second-degree arson each “require[] proo f of a fact which the other does not.” Blockburger v. United States , 284 U.S. 299, 304 (1932). Second, the district court rejected Mr. Strickland’s Fourth Ame ndment claims, both because he had the opportunity to fully and fairly litigate the issue in the Wyoming courts and because the Wyoming Supreme Court’s conclusion that Mr. Strickland had consented to all the challenged searches was not un reasonable. Third, the district court rejected Mr. Strickland’s claim that his atto rney was ineffective in failing to call an expert witness and failing to request sever al jury instructions. Finally, the district court concluded that statements made by th e prosecutor did not rise to the level of a violation of Mr. Strickland’s right to a fair trial. Mr. Strickland sought- 4 -

to appeal the district court’s decision, and the di strict court denied his request for a COA. He renews his request for a COA before this court. Congress has mandated that a COA may issue “only if the applicant has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). We have held that a petitioner “can make such a showing by demonstrating that the issues he seeks to raise on appeal are deserving of further proceedings, subject to a different resolution on appeal, or reasonably debatable among jurists of reason.” Montez v. McKinna , 208 F.3d 862, 869 (10th Cir. 2000). In this case, Mr. Strickland has not made s uch a showing. Therefore, for substantially the same reasons set forth in the dis trict court’s thorough opinion, we DENY Mr. Strickland’s request for a COA and DISM ISS this appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge