United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
Judge Camille D. Bibles issued a Report and Recommendation
(“R&R”) recommending Thomas H. Warner's
petition for writ of habeas corpus be denied. (Doc. 21).
Warner filed objections to the R&R but, having reviewed
the issues de novo, Warner is not entitled to relief.
Therefore, the R&R will be adopted and Warner's
petition will be denied.
factual background is undisputed. In February 2012, Warner
was having problems with his computer. Warner gave his
computer to an individual who operated a computer repair
company. In attempting to repair Warner's computer, that
individual found “a folder on the computer that had
about fifty images of nude boys ranging in ages of five years
old to fourteen years old.” The individual took the
computer to the police and officers obtained a search warrant
for Warner's computer and home. The police subsequently
located hundreds of additional images on Warner's
computer. The police also found numerous external storage
drives containing sexual images of boys.
on the images, Warner was charged with ten counts of sexual
exploitation of a minor in state court. After discussions
with his counsel, Warner opted to plead guilty to one count
of sexual exploitation of a minor and two counts of attempted
sexual exploitation of a minor. (Doc. 21 at 2). Warner was
sentenced to ten years imprisonment as well as lifetime
was then appointed different counsel for purposes of seeking
post-conviction relief. That counsel filed a notice she was
“unable to find any claims for relief to be raised in
post-conviction relief proceedings.” Warner then filed
a pro se petition. In his petition, Warner claimed he had
been denied effective assistance of counsel at trial and
during post-conviction proceedings. Warner also argued he had
new evidence regarding a mental health disorder, the relevant
criminal statute did not apply to his conduct, and the
prosecution had engaged in misconduct. The trial court denied
relief as did the Arizona Court of Appeals. Warner then filed
the present federal petition.
screening Warner's federal petition, the Court
interpreted Warner as presenting four claims: (1) the
evidence against him had been obtained using an illegal
search warrant; (2) his trial counsel had been ineffective by
not moving to suppress the evidence against him; (3) the
prosecutor had coerced Warner's guilty plea; and (4) the
Arizona courts had demonstrated “prejudice and
bias” during the post-conviction relief process. (Doc.
7 at 9). The Court dismissed the fourth claim because errors
of the type Warner alleged in the state post-conviction
review process cannot be addressed in a federal habeas
proceeding. Franzen v. Brinkman, 877 F.2d 26, 26
(9th Cir. 1989). The Court called for an answer to the
remaining three claims.
answering the petition, Respondents stated Warner's
claims were barred by the “affirmative defenses of
preclusion, non-cognizability, and procedural default.”
(Doc. 16 at 2. In her R&R, the Magistrate Judge agreed
that Warner had not exhausted any of his claims. After
reaching that conclusion, the Magistrate Judge went on to
explain why, even if exhausted, the claims would not entitle
Warner to relief. Warner filed objections but, as set forth
below, those objections do not show Warner is entitled to
Fourth Amendment Claim
first claim is that all the “evidence used in [his]
prosecution was obtained by police detectives' use of an
illegal search warrant.” (Doc. 7 at 6). As correctly
explained in the R&R, a federal court “cannot grant
federal habeas relief” on this type of Fourth Amendment
issue. Moorman v. Schriro, 426 F.3d 1044, 1053 (9th
Cir. 2005). That is, because Arizona gave Warner “an
opportunity for full and fair litigation of his Fourth
Amendment claim, ” he cannot obtain federal habeas
relief on his Fourth Amendment claim. Id. The fact
that Warner did not actually litigate the Fourth Amendment
claim in state court is immaterial. “It does not matter
that petitioner pleaded guilty before litigating the [Fourth
Amendment] issue; what matters is that petitioner had the
opportunity.” Hunt v. Williams, No.
3:13-CV-00040-MMD, 2014 WL 2761168, at *2 (D. Nev. June 17,
2014). Thus, even assuming the Fourth Amendment claim had
been raised in state court, Warner would not be entitled to
Ineffective Assistance of Counsel
second claim is that his trial counsel provided ineffective
assistance by failing to file a motion to suppress in the
state court proceedings. For present purposes the Court will
assume that, pursuant to Martinez v. Ryan, 566 U.S.
1 (2012), Warner's procedural default does not prevent
analysis of the claim on its merits.
prove ineffective assistance of counsel Warner must show
“both deficient performance by counsel and
prejudice.” Knowles v. Mirzayance, 556 U.S.
111, 122 (2009). To prove deficient performance in the
specific context of failing to file a motion to suppress,
Warner must establish “no competent attorney would
think a motion to suppress would have failed.”
Premo v. Moore, 562 U.S. 115, 124 (2011). In other
words, if Warner's “counsel reasonably could have
determined that the ...