United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
GARY S. AUSTIN, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation at the Sierra Conservation Center in Jamestown, California, pursuant to a 2011 conviction sustained in Kern County Superior Court for carjacking and second degree robbery. On January 6, 2012, he was sentenced to serve a sentence of twenty years in state prison.
On February 27, 2014, Petitioner filed the instant petition for writ of habeas corpus. He raises the following four claims for relief: (1) "The trial court erred in denying Petitioner's motion to suppress the evidence found in violation of Petitioner's Fourth Amendment right of the United States Constitution"; (2) "The trial court erred in granting prosecution witness Pablo Avalos immunity. This error denied Petitioner his due process rights within the meaning of the United States Constitution"; (3) "Petitioner was denied his constitutional right to the effective assistance of counsel during his direct state appeal"; and (4) "The cumulative effect of the trial errors denied the Petitioner his constitutional right to a fair trial."
I. 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). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson , 440 F.2d 13, 14 (9th Cir. 1971).
II. Failure to State a Cognizable Federal Claim
In the first claim of his petition, Petitioner alleges the trial court violated his Fourth Amendment rights by denying his motion to suppress evidence. He contends he was subjected to an unreasonable search and seizure in violation of the Fourth Amendment when investigating officers conducted a warrantless search of his residence without permission or any exigent circumstances.
The Supreme Court has held that "where 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 his trial." Stone v. Powell , 428 U.S. 465, 494 (1976); see Woolery v. Arave , 8 F.3d 1325, 1328 (9th Cir.1993) ("We read Stone as a categorical limitation on the applicability of fourth amendment exclusionary rules in habeas corpus proceedings." (citations omitted)). The only inquiry this Court can make is whether Petitioner had a fair opportunity to litigate his claim. 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." (citations omitted)); Siripongs v. Calderon , 35 F.3d 1308, 1321 (9th Cir.1994) ("[Petitioner's argument goes not to the fullness and fairness of his opportunity to litigate the claim, but to the correctness of the state court resolution, an issue which Stone v. Powell makes irrelevant." (citation omitted)).
The policy behind Stone's holding 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. Id. at 489-90; Woolery , 8 F.3d at ...