Weaver v. Tuggle, 10th Cir. (1999)
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
OCT 18 1999
PATRICK FISHER
Clerk
RICHARD G. WEAVER,
Petitioner-Appellant,
v.
THOMAS M. TUGGLE, Judge,
District Court Cloud County, Kansas;
ROBERT A. WALSH, Cloud County
Attorney; ATTORNEY GENERAL
OF THE STATE OF KANSAS,
No. 99-3021
(D.C. No. 98-CV-3097)
(D. Kan.)
Respondents-Appellees.
ORDER AND JUDGMENT
Before KELLY , BRISCOE , and HENRY , 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This order and judgment is not binding precedent, except under the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.
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.
Petitioner seeks a certificate of appealability to appeal the district courts
denial of his petition for writ of habeas corpus under 28 U.S.C. 2254. Because
petitioner has failed to make a substantial showing of the denial of a
constitutional right, 28 U.S.C. 2253(c)(2), we deny the certificate of
appealability and dismiss the appeal.
Petitioner was convicted of battery against a law enforcement officer in
violation of Kan. Stat. Ann. 21-3413 and sentenced to six months
imprisonment in the county jail. The charges stemmed from an altercation
between petitioner and two officers, a Kansas highway patrolman and a local
sheriffs deputy. The officers were investigating a report of gunshots when they
saw petitioner emerge from a field with a shotgun and a beer. Although petitioner
verbally identified himself, he refused to produce a drivers license or other
confirming documentation and eventually struck the state trooper three times.
The trial court denied his motion to suppress--as the fruit of an illegal seizure--all
evidence and testimony obtained after the point petitioner told the officers his
name.
The state court of appeals affirmed the conviction, determining that under
the circumstances the officers had a reasonable or articulable suspicion of
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possible criminal activity justifying a stop of petitioner for further investigation
under the principles set forth in
Ann. 22-2402(1).
Terry v. Ohio , 392 U.S. 1 (1968) and Kan. Stat.
See Appellants App. at 5. The court also determined that
the evidence was sufficient to support petitioners conviction.
See Appellants
App. at 7-8.
The district court determined that the State had afforded petitioner an
opportunity for full and fair litigation of his Fourth Amendment illegal seizure
claim and that he was not entitled to habeas relief on the ground that evidence
obtained in an unconstitutional seizure was introduced at his trial.
See Stone v.
Powell , 428 U.S. 465, 481-82 (1976). We agree with the district court that
petitioner was afforded the required opportunity to litigate his Fourth Amendment
claim in state court and that proper constitutional standards were applied.
Petitioner also contends that the evidence was insufficient to support his
conviction. In his appendix, petitioner has included selected parts of his trial
transcript intended to support his argument. However, failure to file a trial
transcript precludes review of a conviction for sufficiency of the evidence.
United States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993). Because petitioner
has failed to file a complete transcript, his sufficiency of the evidence claim is
waived. See id. ; see also 10th Cir. R. 10.1.1(a) (When sufficiency of the
evidence is raised, the entire relevant trial transcript must be provided.). In any
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event, we note that the district court had the relevant transcript and found the
evidence sufficient.
The certificate of appealability is DENIED and the appeal is DISMISSED.
Entered for the Court
Robert H. Henry
Circuit Judge
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