CA7: State court following Davis GFE for pre-Jones GPS hardly unreasonable application of federal law under § 2254(d)

District Court [inexplicably] granted CoA for appeal of Wisconsin planting a GPS device a year before Jones which the state court of appeals held was saved by Davis good faith exception. State v. Oberst, 2014 WI App 58, 354 Wis. 2d 278, 847 N.W.2d 892 (2014). Petitioner’s habeas claim was properly rejected as showing no unreasonable application of federal law under 2254(d). The CoA included whether Stone v. Powell was complied with, and petitioner failed to brief it. Affirmed. Oberst v. Ardikovic, 2017 U.S. App. LEXIS 11000 (7th Cir. June 21, 2017):

Oberst raised only one claim in his petition: that the Wisconsin courts erred by failing to suppress evidence of data collected from a Global Positioning Satellite (GPS) tracking device that police installed on his vehicle without a warrant. The district court denied his petition on the grounds that Oberst had a full and fair opportunity to litigate his Fourth Amendment claim in state court. That meant, under the rule of Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), that federal habeas corpus relief was unavailable. The district court also held that if it had reached the merits, it would have rejected Oberst’s petition on the merits, because the state-court proceedings did not result in a decision contrary to, or involving an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). After initially denying Oberst a certificate of appealability (COA), the district court changed its mind and issued a COA permitting Oberst to appeal the question whether the state courts had unreasonably determined that (1) United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L. Ed. 2d 911 (2012), should not be applied retroactively and that (2) law enforcement officers reasonably relied on then-existing precedent when they installed the GPS device without a warrant. The COA did not mention the question whether Oberst’s petition was barred by Stone, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067.

Oberst did not move or argue for an expanded COA to address the Stone issue. … [which would have been denied anyway]

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