F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               January 20, 2006
                                    TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                                 Clerk of Court

 MICHAEL W. BERRYHILL,

        Petitioner-Appellant,
 v.                                                            No. 05-5144
 SAM CALBONE, Warden;                               (D.C. No. 03-CV-213-TCK-SAJ)
 ATTORNEY GENERAL OF THE                                   (N. D. Oklahoma)
 STATE OF OKLAHOMA,

        Respondents-Appellees.




                                         ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



       Petitioner Michael Berryhill, a prisoner in the custody of the State of Oklahoma

proceeding pro se, seeks a certificate of appealability (COA) to appeal the district court’s

denial of the habeas petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from a final order disposing of a §

2254 petition unless the petitioner first obtains a COA).

       Following a bench trial in the Osage County District Court, Berryhill was

convicted of manufacturing methamphetamine in violation of Okla. Stat. tit. 63, § 2-

401(F) and possession of drug paraphernalia in violation of Okla. Stat. tit. 63, § 2-405(B).
The court sentenced Berryhill to twenty years’ imprisonment and a $50,000 fine on the

manufacturing charge and one year imprisonment and $1,000 fine on the possession

charge. Berryhill appealed his conviction to the Oklahoma Court of Criminal Appeals

(OCCA), which affirmed the judgment and sentence.

       Berryhill filed a petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in

the United States District Court for the Northern District of Oklahoma. In the petition,

Berryhill raised three claims: 1) his arrest was unlawful; 2) the search warrant was

unlawful; and 3) the evidence was insufficient to support a conviction for manufacturing

methamphetamine.

       Reviewing the decision of the OCCA, the district court concluded in a very

thorough order that Berryhill had a full and fair opportunity to litigate his claims and as a

result, the court was precluded from considering these issues. The district court also

found that based on the evidence, a rational trier of fact could have found proof of guilt

beyond a reasonable doubt on the charge of manufacturing methamphetamine.

       This court can issue a COA only “if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 

, 327 (2003). This determination “requires an overview of the


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claims in the habeas petition and a general assessment of their merits.” 

Berryhill is not required to prove the merits of his case, but he must nonetheless

demonstrate “something more than the absence of frivolity” or the mere existence of good

faith on his part. 

(internal quotation marks omitted).

       Under § 2254, this court may grant a COA on a claim that was adjudicated on the

merits in state court only if the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(1)-(2). After careful review of Berryhill’s application, the district court’s order

denying relief, and the material portions of the record, we conclude that Berryhill’s claims

are without merit.

       Berryhill first argues that his conviction stemmed from evidence obtained as the

result of an unconstitutional arrest and search. The district court found that the Supreme

Court’s decision in Stone v. Powell, 

(1976), barred Berryhill’s claim. In

Stone, the Court held that, “where the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, the Constitution does not require that a state

prisoner be granted federal habeas corpus relief on the ground that evidence obtained in

an unconstitutional search or seizure was introduced at his trial.” 

       This court reviews de novo whether a petitioner had an opportunity for full and fair


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litigation of his or her Fourth Amendment claim. Smallwood v. Gibson, 

,

1265 (10th Cir. 1999)(citation omitted). In this case, Berryhill raised the issue of

unlawful arrest in a motion to dismiss before the trial court. He also filed a motion to

suppress the evidence obtained from the alleged unlawful search of the premises. At a

preliminary hearing, Berryhill had an opportunity to argue these motions, but the court

overruled them. Berryhill’s counsel renewed the motions at the commencement of trial.

The trial court took the matters under advisement, but it ultimately denied the motions

and found Berryhill guilty. Berryhill’s appellate counsel advanced the same arguments on

direct appeal to the OCCA. The state appellate court considered Berryhill’s Fourth

Amendment claim and, applying appropriate Supreme Court precedent, rejected the claim

on its merits. Based on this record, Berryhill had multiple opportunities to litigate these

issues fully and fairly.

       Berryhill also contends there was insufficient evidence to support his conviction

for methamphetamine manufacturing. “When reviewing the sufficiency of the evidence

on a habeas corpus petition, the relevant question is ‘whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Turrentine v. Mullin,

, 1197 (10th Cir. 2004) (quoting Jackson v. Virginia, 

, 319

(1979)). Based on the record, we agree with the district court and the OCCA that a

reasonable juror could have found proof beyond a reasonable doubt that Berryhill


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manufactured methamphetamine.

      Berryhill has failed to make a substantial showing of the denial of a constitutional

right. Accordingly, Berryhill’s request for a COA is DENIED and this matter is




DISMISSED.



                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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