Successive prosecution and conviction in state court after federal court granted suppression motion did not warrant habeas relief

The habeas petitioner was originally charged in federal court with possession of drugs, and the federal court granted his suppression motion, which was not appealed. The state then charged the petitioner in state court, the motion to suppress was denied, and his conviction was affirmed on appeal. On limited habeas review, for which he was granted a COA, under Stone v. Powell, the successive prosecution did not amount to “an unconscionable breakdown” in the suppression motion process. Chavez v. Weber, 497 F.3d 2668 (8th Cir. 2007):

Chavez contends that the successive federal and state litigations of the suppression issue amount to an unconscionable breakdown in the underlying process. We reject his argument. As a threshold matter, we observe that, “although a defendant may not be prosecuted twice by the same sovereign for the same acts, a subsequent prosecution by a separate sovereign does not violate the Constitution.” United States v. Johnson, 169 F.3d 1092, 1095-96 (8th Cir. 1999). An exception exists where a state prosecution is a “sham” for a federal prosecution, id. at 1096, but the record supports the state courts’ conclusion that the federal and state prosecutors acted independently in this case. By calling three witnesses who had not testified at the federal suppression hearing, the State mounted a stronger case against Chavez than the federal government had brought, but this does not amount to an unconscionable breakdown in the system where there is no evidence of control or collusion between the separate prosecuting authorities. See United States v. Davis, 906 F.2d 829, 832-33 (2d Cir. 1990) (suppression issues usually can be separately litigated by separate sovereigns). Chavez contends that the state court’s admission of the same evidence that earlier had been suppressed by the federal court contravenes the policy of Stone by allowing one court to second-guess another, but this argument overlooks the fact that the state court analyzed a different record than was before the federal court. Finally, as the district court observed, Chavez was able to appeal these issues to the South Dakota Supreme Court, and he has not argued, nor do we see any evidence of, any breakdown in fairness at the state appellate level. See Willett, 37 F.3d at 1272.

Officers had probable cause for plaintiff’s arrest, and he failed to show any clearly established right that was violated to defeat qualified immunity. Scallion v. Norman, 251 Fed. Appx. 853 (5th Cir. 2007)* (unpublished).

Alleged Franks violation failed because the statements in the affidavit were not misleading. The officer was also not obliged to put defendant’s denial that the officer reasonably believed to be false in the affidavit. Even so, the information attacked under Franks, if stripped from the affidavit, would not eliminate the probable cause, of which there was plenty based on a controlled buy just before the warrant was sought. United States v. Holt, 246 Fed. Appx. 602 (11th Cir. 2007)* (unpublished).