Warner v. Ryan

          ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge.

         Magistrate 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.

         BACKGROUND

         The 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.

         Based 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 supervised probation.

         Warner 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.

         In 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.

         In 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 relief.

         ANALYSIS

         I. Fourth Amendment Claim

         Warner's 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 relief.

         II. Ineffective Assistance of Counsel

         Warner's 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.

         To 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 ...