Lynch vs. Jones

Filing 920061113

Opinion

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United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS TENTH CIRCUIT F I L E D November 13, 2006 Elisabeth A. Shumaker Clerk of Court N ELSO N R. LY N CH , Petitioner - A ppellant, v. JUSTIN JONES, Respondent - Appellee. No. 06-6255 (W . D. Oklahoma) (D.C. No. 06-CV -00099-HE) OR DER DENY ING CERTIFICATE O F APPEALABILITY * Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit Judges. On January 30, 2006, Nelson R. Lynch filed in the United States District Court for the W estern District of Oklahoma an application for relief under 28 U.S.C. 2254 challenging his Oklahoma state conviction of possession of cocaine with intent to distribute. He contended that (1) the cocaine was obtained in an unlawful search of his vehicle, (2) his trial attorney was ineffective for After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. * failing to challenge the legality of the search, (3) his attorney for his state appeal was ineffective for failing to challenge his trial counsel's effectiveness, and (4) his sentence was unlawful. The district court denied the 2254 application, adopting in its entirety the Report and Recommendation by the magistrate judge. M r. Lynch then filed a notice of appeal. The district court issued no ruling regarding whether M r. Lynch is entitled to a certificate of appealability (COA) to pursue his appeal. See 28 U.S.C. 2253(c) (requiring COA). W e therefore deem that it denied a COA. United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000). M r. Lynch now seeks a COA from this court. To be entitled to a COA he must "ma[k]e a substantial showing of the denial of a constitutional right." 2253(c)(2). W e will grant a C OA only if reasonable jurists could debate the district court's ruling. See Slack v. M cDaniel, 529 U.S. 473, 484 (2000). The Report and Recommendation thoroughly explored M r. Lynch's claims. In particular, it explained that the vehicle search was clearly lawful, thereby undermining all of M r. Lynch's claims other than the challenge to his sentence. No reasonable jurist could debate the correctness of the analysis in the Report and Recommendation. W e therefore D EN Y a C OA and DISM ISS this appeal. W e also DENY -2- M r. Lynch's motion for leave to proceed in form a pauperis. ENTERED FOR THE COURT Harris L Hartz Circuit Judge -3-

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