Woolery v. Arave

• Decision Date: 26 October 1993
• Docket Number: No. 91-36029,91-36029
• Citation: 8 F.3d 1325
• Parties: James R. WOOLERY, Plaintiff-Appellee, v. A.J. ARAVE, Warden, Idaho Maximum Security Institution, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1325

8 F.3d 1325

James R. WOOLERY, Plaintiff-Appellee, v. A.J. ARAVE, Warden, Idaho Maximum Security Institution Defendant-Appellant.

No. 91-36029.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 1, 1993.

Decided Oct. 26, 1993.

Gar Hackney, Lynn, Scott, Hackney & Jackson, Boise, ID, for plaintiff-appellee.

Myrna A.I. Stahman, Asst. Atty. Gen., Boise, ID, for defendant-appellant.

Appeal from the United States District Court for the District of Idaho.

Before: WRIGHT, CANBY, and REINHARDT, Circuit Judges.

CANBY, Circuit Judge:

Idaho appeals the district court's grant of James Woolery's petition for a writ of habeas corpus. Woolery's petition alleged that he was entitled to relief because evidence of a blood alcohol test introduced at his trial in state court was obtained in violation of his Fourth Amendment rights. In its response to Woolery's petition in district court, the State of Idaho neglected to assert that the claim was barred by the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The magistrate judge and the district court consequently reached the merits of Woolery's Fourth Amendment claim. On appeal from the district court's grant of Woolery's petition, Idaho argues that it was not required to raise the Stone rule as an affirmative defense, and that, in light of Stone, Woolery's petition should be denied.

The question before us is whether, absent a showing that the state denied a full and fair opportunity to litigate the Fourth Amendment claim, the rule of Stone v. Powell precludes the federal court from enforcing the exclusionary rule through the writ of habeas corpus even though the state has failed to raise the Stone issue. We conclude that Stone has that effect. Accordingly, we reverse and remand.

DISCUSSION

In Stone v. Powell, the Supreme Court 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." Id. at 494, 96 S.Ct. at 3052. The holding is grounded in the Court's conclusion that in cases where a petitioner's Fourth Amendment claim has been adequately litigated in state court, enforcing the exclusionary rule through writs of habeas corpus would not further the deterrent and educative purposes of the rule to an extent sufficient to counter the negative effect such a policy would have on the interests of judicial efficiency, comity and federalism. Id. at 493-494, 96 S.Ct. at 3051-52; see also id. Withrow v. Williams, --- U.S. ----, ----, 113 S.Ct. 1745, 1750, 123 L.Ed.2d 407 (1993) ("[W]e simply concluded in Stone that the costs of applying the exclusionary rule on collateral review outweighed any potential advantage to be gained by applying it there.").

There is no indication in the language of the opinion that the Court intended for the Stone rule to apply only when the state raised it in timely fashion. On the contrary, the Court made clear that the rule is a categorical limitation on the scope of the exclusionary rule:

Our decision does not mean that the federal court lacks jurisdiction over such a claim, but only that the application of the rule is limited to cases in which there has [sic] been both ... a showing [that the state court did not provide the petitioner with an opportunity to fully and fairly litigate his Fourth Amendment claims] and a Fourth Amendment violation.

Id. 428 U.S. at 495 n. 37, 96 S.Ct. at 3053 n. 37 (emphasis added).

The exclusionary rule is a creation of the judiciary. Kimmelman v. Morrison, 477 U.S. 365, 376, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986). In a series of decisions, the Supreme Court has given the rule shape and definition. 428 U.S. at 485, 96 S.Ct. at 3048. In Stone v. Powell, the Court limited the occasions on which petitioners in habeas proceedings could challenge a state court's failure to exclude evidence on Fourth Amendment grounds; the claim could be entertained only when the petitioner had not had an adequate opportunity to litigate his Fourth Amendment claims in state court. See id. at 488, 96 S.Ct. at 3049 (stating that negligible benefits derived through enforcing exclusionary rule through habeas corpus proceedings would be outweighed by resultant intrusion on federalism and comity). Accordingly, we conclude that absent a showing by Our reading of Stone is consistent with our decision in Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n. 3 (9th Cir.1980), in which we held that a "fourth amendment claim is not cognizable as a basis for federal habeas relief, where the state has provided an opportunity for full and fair litigation of the claim" (emphasis added). This language indicates that unless the district court finds that the petitioner has made the requisite showing, the court may not grant relief on the petitioner's Fourth Amendment claims. While this requirement may be prudential rather than jurisdictional, it is founded in policy considerations that oblige the court to raise the issue sua sponte if the state neglects to assert it. ¹ Accord Davis v. Blackburn, 803 F.2d 1371, 1372-73 (5th Cir.1986). ²

Woolery that the state court did not afford him an adequate hearing on his Fourth Amendment claim, the federal court may not award relief for the claim through enforcement of the exclusionary rule.

We are mindful that in our recent decision in Boardman v. Estelle, 957 F.2d 1523, 1534-37 (9th Cir.) (per curiam), cert. denied, --- U.S. ----, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992), we ruled that when a state has failed to raise in district court the Teague "new rule" defense, see Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the appeals court retains discretion to refuse to recognize the defense. Boardman, 957 F.2d at 1537. Boardman is different from our case. At the core of the holding in Boardman is the court's recognition that there are some circumstances under which an appeals court's refusal to entertain a state's untimely new rule defense will not intrude on the principles of comity and federalism. Id. at 1536-37. In such cases, the appellate court is not required to raise the Teague rule sua sponte. Id. at 1536; see also Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (appeals court retains qualified discretion to address merits of habeas corpus petitioner's claims when state fails to assert in district court proceedings that petitioner has not exhausted state court remedies).

The language and reasoning of the Stone decision compel a different conclusion in the present case. In part, Stone is based on the same considerations of judicial efficiency, finality, and federalism that underlie other procedural requirements surrounding federal habeas. See Stone, 428 U.S. at 491 n. 31, 96 S.Ct. at 3051 n. 31; Withrow v. Williams, --- U.S. at ----, 113 S.Ct. at 1750. But the It is true, as the dissent argues, that when other types of claims are urged on habeas, we will often consider a procedural barrier to be waived if the state does not assert it. See, e.g., Jenkins v. Anderson, 447 U.S. 231, 234 n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86 (1980) (default in failing to raise self-incrimination claim in state trial waived by state's failure to assert it); Suniga v. Bunnell, 998 F.2d 664, 667 (9th Cir.1993) (failure to object to instruction that violated due process no bar when state has not asserted default). In those cases, however, there was nothing inappropriate about entertaining the constitutional claim for relief in federal court; if no procedural defaults had occurred, the federal court would have reviewed the claims in habeas proceedings as a matter of course. In Stone, the Supreme Court made it clear that, if all procedural requirements are scrupulously followed, a fourth amendment claim for exclusion of evidence is not to be enforced in habeas proceedings.

                remaining considerations in Stone were the limitations inherent in the exclusionary rule itself;  it excluded "the most probative" evidence, and the deterrent value that supported its application in direct proceedings was not materially enhanced by applying it on collateral review.  Stone, 428 U.S. at 489-90, 493-94, 96 S.Ct. at 3050, 3051-52.  "In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force."  Id. at 494-95, 96 S.Ct. at 3052-53 (footnote omitted).   The Court couched its ruling in terms of a requirement:  To be eligible for habeas relief on Fourth Amendment claims, a petitioner must demonstrate that the state court has not afforded him a full and fair hearing on those claims.  Id. at 494 n. 37, 96 S.Ct. at 3052 n. 37.   We read Stone as a categorical limitation on the applicability of fourth amendment exclusionary rules in habeas corpus proceedings.   See id. at 495, 96 S.Ct. at 3053;  Kimmelman, 477 U.S. at 376, 106 S.Ct. at 2583
                

CONCLUSION

We reverse the district court's decision granting Woolery habeas relief without consideration of Stone v. Powell. We remand for further proceedings to afford Woolery the opportunity to show that the state court did not offer him a full and fair opportunity to litigate his Fourth Amendment claim. ³ If he fails to make such a showing, his Fourth Amendment claim must be dismissed.

REVERSED AND REMANDED.

REINHARDT, Circuit Judge, dissenting:

I.

The Great Writ of habeas corpus is not a very popular instrument these days. Surprisingly, it is the federal judiciary which appears to find the use of the writ increasingly distasteful. A habeas corpus petitioner must cross a field filled with procedural land-mines before the merits of his claims may be heard in federal court: exhaustion of remedies, procedural default, abuse...