Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
NOV 18 2002
PATRICK FISHER
Clerk
RONNIE PALMER,
Petitioner - Appellant,
v.
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JOE
WILLIAMS, Warden, Lea County
Correctional Facility,
No. 02-2060
D.C. No. CIV-01-574 MV/LFG
(D. New Mexico)
Respondents - Appellees.
ORDER AND JUDGMENT
Before SEYMOUR , EBEL , and OBRIEN , Circuit Judges.

.
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This order and judgment is not binding precedent, except under the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.
Petitioner seeks a certificate of appealability (COA) in order to proceed on

appeal from the district courts denial of his petition for writ of habeas corpus
brought pursuant to 28 U.S.C. 2254. For us to grant a COA, he must make a
substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). When, as here, the claims have been adjudicated on the merits in
state court, a habeas petition cannot be granted
unless the adjudication of the claim--(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
Id. 2254(d). A state court decision is contrary to clearly established federal law
under 2254(d)(1) if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the State court decides
a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.
Williams v. Taylor , 529 U.S. 362, 413 (2000). A state
court decision is an unreasonable application of federal law under 2254(d)(2)

if the state court identifies the correct governing legal principle from [the
Supreme] Courts decisions but unreasonably applies that principle to the facts of
the prisoners case.
Id.
Petitioner was convicted, on a conditional plea of nolo contendere, of one

count of possession of marijuana with intent to distribute in violation of
-2-
N.M. Stat. Ann. 30-31-22(A)(1), reserving the right to appeal the denial of his
motion to suppress certain evidence obtained as a result of a border checkpoint
detention. In state court, as in the federal proceedings, petitioner contended first,
that Border Patrol agents lacked reasonable suspicion to justify prolonging his
detention at the checkpoint (after determining he was a United States citizen) and
second, that the search of the vehicle he was towing exceeded the scope of
consent because the agents let air out of the tires, thereby detecting marijuana
odor inside those tires.
As noted, the state courts addressed petitioners claims on the merits,
determining that the agents had reasonable suspicion to justify his detention by
moving him to a secondary area for further investigation. The state courts further
determined that petitioners general consent to search both the vehicle he was
driving and the one he was towing gave agents the authority to conduct a search
broad enough to encompass releasing a small amount of air from the tires.
The district court correctly determined that the state courts holdings did
not meet the strict standards under
Williams for granting federal habeas relief.
The facts underlying petitioners detention clearly complied with the

reasonableness test required of an investigative detention under
Terry v. Ohio ,
392 U.S. 1 (1968), i.e., whether the officers action was justified at its inception,
and whether it was reasonably related in scope to the circumstances which
-3-
justified the interference in the first place.
Id. at 20. The circumstances in
petitioners case included the fact that he did not know who had rented the
U-Haul he was driving, nor did he supply documentation for either vehicle in his
possession. He also opened the encounter with the agents by immediately using
profanity, which the agents thought was suspicious, and he was carrying a small
amount of luggage for a relatively long car trip.
The state courts also agreed with the government that petitioners general
consent to the vehicle search included the right to inspect the tires. This does not
constitute an unreasonable determination of the facts in light of the evidence
presented. See 28 U.S.C. 2254(d)(2). Moreover, petitioner had a full and fair
opportunity to litigate his search and seizure claims in state court, therefore
barring him from obtaining habeas relief on this ground under
Stone v. Powell ,
428 U.S. 465 (1976).

Finally, petitioner complains that the district courts adoption of the
magistrate judges finding and recommendation without a written opinion
indicates that the district court failed to conduct a thorough de novo review of
the state court record. Aplt. Br. at 8. We disagree. We assume that the district
court performed its review function properly in the absence of evidence to the
contrary. Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997).
-4-
Accordingly, for these and the reasons stated in the magistrate judges
findings and recommended disposition filed November 13, 2001, we DENY
petitioners request for a COA and DISMISS the appeal.
The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
-5-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Before SEYMOUR , EBEL , and OBRIEN , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner seeks a certificate of appealability (COA) in order to proceed on

Williams v. Taylor , 529 U.S. 362, 413 (2000). A state

court decision is an unreasonable application of federal law under 2254(d)(2)

Petitioner was convicted, on a conditional plea of nolo contendere, of one

Williams for granting federal habeas relief.

The facts underlying petitioners detention clearly complied with the

justified the interference in the first place.

Id. at 20. The circumstances in

428 U.S. 465 (1976).

Entered for the Court

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