UNITED STATES COURT OF APPEALS TENTH CIRCUIT

WILLIAM R. STEVENSON, Petitioner–Appellant,

v. WARDEN RAE TIMME; JOHN SUTHERS, The Attorn ey General of the State of Colorado, Respondents–Appellees. No. 13-1147 (D.C. No. 1:12- CV-02175-WJM) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

William Stevenson, a state prisoner proc eeding pro se, seeks a certificate of appealability (“COA”) to appeal the district cour t’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.
I In 2008, Stevenson was convicted in Colora do state court of aggravated robbery.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### August 27, 2013
Elisabeth A. Shumaker Clerk of Court-2- He was sentenced to twenty-fo ur years’ imprisonment. The Colorado Court of Appeals affirmed his conviction and sentence on directreview. Stevenson did not seek state postconviction relief. In a federal habeas petition, Stevenson asserted th ree claims: (1) his arrest was not supported by probable cause, rendering any evidence gathered subsequent to his arrest inadmissible under the Fourth Amendment; (2) his Miranda warning was inadequate; and (3) his Sixth Amendment right to a speedy trial was violated. Stevenson later amended his application to include a cl aim of ineffective assi stance of counsel. The district court concluded that Stevenson’s speedy trial and ineffective assistance of counsel claims had not been exhausted, and gave Stevenson an oppor tunity to withdraw those claims. After Stevenson elected to pr oceed only with clai ms one and two, the district court denied relief and declined to grant a COA. Stevenson now seeks a COA from this court. 1
II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. 28 U.S.C. § 2253(c)(1)( A). We will grant a COA only if Stevenson shows “that reasonable jurists could debate whether (or, for that matte r, agree that) the petition should

1 The district court entered final judgmen t on March 12, 2013. Stevenson then had thirty days to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). He filed his notice of appeal on April 12, 2013—thi rty-one days after judgment ha d been entered. However, under the prison mailbox rule, “a pro se prison er’s notice of appeal will be considered timely if given to prison officials for maili ng prior to the filing deadline.” Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). The certific ate of mailing attached to Stevenson’s notice of appeal was dated April 10, 2013, and thus his appeal is timely.-3- have been resolved in a different manner or that the i ssues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). To prevail on th e merits, Stevenson must demonstrate that the state courts’ adjudication of his claims ei ther “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 app lication of, clearly established Federal law.” § 2254(d)(1), (2). Because Stev enson proceeds pro se, we cons true his filings liberally; however, “we do not assume the role of ad vocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008 ) (quotation omitted). On appeal, Stevenson claims that the dist rict court erred in determining that he was provided a full and fair opportunity to litigate his Fourth Amendment claim in state court. “[A] state prisoner may not be gran ted federal habeas corpus relief on the ground that evidence obtained in an un constitutional search or seizure was introduced at his trial” if “the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim.” Stone v. Powell, 428 U.S. 465, 494 (1976) (footnote omitted). “Opportunity for full and fair consideration in cludes, but is not limited to, the procedural opportunity to raise or othe rwise present a Fourth Amendm ent claim,” a “full and fair evidentiary hearing,” and “at least colorable application of the correct Fourth Amendment constitutional standards.” Gamble v. Okla homa, 583 F.2d 1161, 1165 (10th Cir. 1978) (quotation and foot note omitted). The state trial court held an evidentia ry hearing on Stevenson’s motion to-4- suppress, during which the investigating detective and Steven son were carefully questioned, before concluding that the arre st was lawful. And the Colorado Court of Appeals upheld that determination, colorably applying the correct standard for probable cause. Stevenson’s disagreement with the pr ecedent applied and the conclusions reached by the state courts does not demonstrate an “unconscionable” breakdown in the state court proceedings. Id. at 1165 n.3. We agre e with the district court that Stevenson had a full and fair opportunity to litigate his Four th Amendment claim in state court. See Smallwood v. Gibson, 191 F.3d 1257, 12 65 (10th Cir. 1999) (habeas relief barred because Fourth Amendment claims were adequa tely presented at trial and considered on direct appeal under appropriate Supreme Court precedent). Stevenson also argues that the district court failed to make its own factual determinations in evaluating the sufficiency of his Miranda warn ings and improperly concluded those warnings were adequate. But under Supreme Court precedent, the “inquiry is simply whether the warnings r easonably convey to a suspect his rights as required by Miranda.” Flor ida v. Powell, 559 U.S. 50, 60 (2010) (quotation and alterations omitted). The state courts reas onably concluded that that threshold was satisfied. The Colorado Court of Appeals re jected Stevenson’s Miranda claim based on credible testimony that Stevenson dem onstrated willingness to speak with the investigating detective after his Miranda righ ts were recited to him at the time of his arrest and again at the police station. Bo th times, Stevenson knowingly and voluntarily waived his rights. See Colora do v. Spring, 479 U.S. 564, 573-74 (1987) (setting forth-5- standard for knowing and volunta ry waiver of Miranda rights). Stevenson complains that the district court analyzed the state court decision rather than considering the facts and law independ ently. But the distri ct court properly evaluated the state court’s adjudication of hi s claim against the applicable standard for habeas relief. See § 2254(d)(2). Stevens on failed to provide clear and convincing evidence to rebut the state courts’ factual de terminations, and thus those determinations are presumed correct. See § 2254(e). For th is reason, Stevenson’s final contention that he should have been afforded an evid entiary hearing also lacks merit. See Anderson v. Attorney Gen. of Kan., 425 F. 3d 853, 859 (10th Cir. 2005) (“ [A]n evidentiary hearing is unnecessary if the claim can be resolved on th e record.”). We are in substantial agreement with the reasoning of the district court and conclude that reasonable jurists could not debate its rulings.
III For the foregoing reasons, we DENY a COA and DISMISS the appeal. We GRANT Stevenson’s motion to proceed in forma pauperis. Entered for the Court

Carlos F. Lucero Circuit Judge