{"id":6631,"date":"2012-02-16T13:11:05","date_gmt":"2012-02-05T08:47:02","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-02-05T08:47:02","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6631","title":{"rendered":"CA6: “Full and fair” opportunity to litigate search in state court bars its habeas review"},"content":{"rendered":"

I ignore 99% habeas cases because of Stone v. Powell<\/a> coupled with AEDPA<\/a> making them largely redundant since based on a pro se habeas petition, but occasionally one shows up worth reporting; but always a federal appeal:<\/p>\n

2254 habeas petitioner had a \u201cfull and fair\u201d opportunity to litigate his search and seizure claim in state court, and the habeas court could not second guess it’s decision and will not permit litigation of a defaulted claim. Fulcher v. Logan County Circuit Court<\/a>, 2012 U.S. App. LEXIS 1908, 2012 FED App. 0112N (6th Cir. January 31, 2012) (unpublished):<\/p>\n

Upon review, we hold that Fulcher had a full and fair opportunity to litigate his Fourth Amendment claims in state court. As his primary argument, Fulcher asserts that the Kentucky State Police acted in bad faith in obtaining the August 3 search warrant, which he contends was not supported by probable cause. This precise issue, however, was addressed at trial and reviewed by the Kentucky Supreme Court. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3-*4. Moreover, there is no evidence indicating that Fulcher’s presentation of his claim was somehow frustrated. Accordingly, Fulcher’s arguments before this court, which go to the “correctness” of the Kentucky Supreme Court’s analysis, will not be considered. Riley, 674 F.2d at 526.<\/p>\n

With regard to the July 24 search, Fulcher again asserts that the warrant was not supported by probable cause. This claim, like the first, is not cognizable on habeas review as Fulcher had a “full and fair” opportunity to litigate this claim in state court. Id. What’s more, this claim is procedurally defaulted, as Fulcher failed to challenge the July 24 search on direct appeal and he may no longer assert the claim in state-court proceedings. Fulcher II, 2007 Ky. Unpub. LEXIS 45, 2007 WL 1536854, at *3 n.1. Accordingly, the claim is barred.<\/p><\/blockquote>\n

Remember, the only exception to “full and fair” is ineffective assistance under Kimmelman v. Morrison<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6631","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6631","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6631"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6631\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6631"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6631"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6631"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}