United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Petitioner German Felipe Reyes-Reyes filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On May 20, 2014, United States Magistrate Judge Mark E. Aspey issued a report and recommendation ("R&R") recommending that the petition be denied. Doc. 13 at 9. The Court will accept the R&R.
On January 13, 2012, two off-duty Phoenix police officers were providing security for an apartment complex at 1717 West Glendale Avenue in Phoenix, Arizona. Doc. 11 at 3. At about 8:00 p.m., the officers noticed a black Mercedes parked in one of the parking coves on the east side of the apartment complex. Id. A registration check on the Mercedes revealed that it was registered to Amy Marie Siegel. Id. The officers approached the vehicle on foot. Id. Petitioner, the sole occupant of the vehicle, was talking on a cell phone. Id. The officers began conversing with Petitioner. Id. After performing a warrant search on their mobile data terminal, the officers learned that there was an outstanding warrant for Petitioner's arrest, so they handcuffed him and placed him under arrest. Id. Pursuant to the arrest, the officers searched Petitioner's person and discovered two baggies of methamphetamine in his pockets. Id. at 4. The officers also noticed a black handgun protruding from underneath the center console of the Mercedes. Id. The officers searched the car and found the loaded handgun. Id. The officers also found another baggie of methamphetamine inside the car. Id.
On February 6, 2012, Petitioner was charged with one count of possession or use of dangerous drugs and three counts of misconduct involving weapons. Doc. 11-1 at 7. On March 29, 2012, the State of Arizona filed allegations of aggravating circumstances and allegations of prior convictions, including an assertion that Petitioner committed the charged offenses while on felony release. Id. at 11, 15, 18.
Prior to his trial, Petitioner moved to suppress all evidence collected from the January 13, 2012 encounter with the two officers. Doc. 11-3 at 54. Petitioner claimed that he had been illegally seized by the officers. Id. at 58. The state trial court denied the motion to suppress, concluding that "[a] police officer does not need reasonable suspicion or cause to approach a person and ask questions" and that Petitioner "was free to leave or not talk to the officers." Doc. 11-1 at 99.
On July 12, 2012, a jury convicted Petitioner on two counts. Doc. 11-2 at 135. Petitioner was sentenced to concurrent terms of ten years on each count. Doc. 11-3 at 48.
Petitioner appealed, asserting that the trial court abused its discretion when it denied his motion to suppress. Id. at 87. On June 20, 2013, the Arizona Court of Appeals affirmed Petitioner's conviction. Id. at 138-41. Petitioner sought review by the Arizona Supreme Court, which denied review on December 4, 2013. Id. at 158.
On December 18, 2013, Petitioner initiated a state action for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. Id. at 163. Respondents assert that the state proceeding is still pending. Doc. 11 at 9. On January 2, 2014, Petitioner filed this Petition for Writ of Habeas Corpus. Doc. 1.
II. Legal Standard.
The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court may accept, reject, or modify the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1).
"If the state has provided a state prisoner an opportunity for full and fair litigation of his Fourth Amendment claim, [a federal District Court] cannot grant federal habeas relief on the Fourth Amendment issue." Moorman v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (citing Stone v. Powell, 428 U.S. 465, 494 (1976)). Whether the state court correctly decided the Fourth Amendment claim is irrelevant. See Stone, 428 U.S. at 494 ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) ("The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.").
Stone did not specify a test for determining whether a State has provided an opportunity for full and fair litigation of a claim. Stone did, however, cite Townsend v. Sain, 372 U.S. 293 (1963), in a footnote. Stone, 428 U.S. at 494 n.36. Townsend held that a federal court must grant a habeas petitioner an evidentiary hearing if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. 372 U.S. at 313. In Mack v. Cupp, 564 F.2d 898 (9th Cir. 1977), the Ninth Circuit explained that although the Townsend test "must be given great weight in defining what constitutes full and fair consideration under Stone, " it need not "always be applied literally... as the sole measure of fullness and fairness." 564 F.2d at 901. The Ninth Circuit has also considered the extent to which the claims were briefed before and considered by the state trial and appellate courts. Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981).
Petitioner bears the burden of establishing that the state courts did not fully and fairly consider his Fourth Amendment claim. Woolery v. ...