The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus in the United States District Court for the Central District of California, Western Division on October 23, 2007. On January 23, 2008, that Court dismissed the petition without prejudice. (Court Doc. 10.) However, on September 29, 2008, that Court considered Petitioner's motion for reconsideration and vacated the January 23, 2008, order of dismissal based on Petitioner's November 19, 2007, First Amended Petition. (Court Doc. 20.) The Court ordered a response to the petition on October 10, 2009. (Court Doc. 21.)
On May 29, 2009, Respondent filed a motion to transfer the case to this Court. (Court Doc. 27.) On June 8, 2009, the Court granted Respondent's motion, and the case was transferred to this Court and received on June 10, 2009. (Court Docs. 28, 29.)
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).
B. Failure to State a Cognizable Federal Claim
The sole ground raised in Petitioner's amended petition is a denial of due process under the Fourth Amendment when he was subjected to an unreasonable search and seizure. Petitioner further alleges that the trial court erred in denying his suppression motion based on the alleged unreasonable search and seizure.
A federal district court cannot grant habeas corpus relief on the ground that evidence was obtained by an unconstitutional search and seizure if the state court has provided the petitioner with a "full and fair opportunity to litigate" the Fourth Amendment issue. Stone v. Powell, 428 U.S. 465, 494 (1976); Woolery v. Arvan, 8 F.3d 1325, 1326 (9th Cir. 1993), cert denied, 511 U.S. 1057 (1994). The only inquiry this Court can make is whether petitioner had a fair opportunity to litigate his claim, not whether petitioner did litigate nor even whether the court correctly decided the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (holding that because Cal. Penal Code § 1538.5 provides opportunity to challenge evidence, dismissal under Stone was necessary).
The policy behind the Stone Court's analysis is that the exclusionary rule is applied to stop future unconstitutional conduct of law enforcement. Stone, 428 U.S. at 492. However, excluding evidence that is not untrustworthy creates a windfall to the defendant at a substantial societal cost. See Stone, 428 U.S. at 489-90; Woolery, 8 F.3d ...