{"id":50999,"date":"2022-01-05T05:13:15","date_gmt":"2022-01-05T10:13:15","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=50999"},"modified":"2022-01-05T05:13:15","modified_gmt":"2022-01-05T10:13:15","slug":"c-d-cal-2254-petrs-choice-of-remedy-in-state-court-still-subject-to-stone-bar","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=50999","title":{"rendered":"C.D.Cal.: 2254 petr’s choice of remedy in state court still subject to Stone<\/em> bar"},"content":{"rendered":"\n

2254 petitioner chose to attempt to exclude cell phone evidence in his state trial based on the claim it was not timely turned over and not that it was illegally seized. That was his choice, and the state did not hamper his ability to make a Fourth Amendment claim. Thus, his claim is barred by Stone. Guyton v. Tampkins, 2021 U.S. Dist. LEXIS 248668 (C.D.Cal. Dec. 2, 2021)*:<\/p>\n\n\n\n\n\n\n\n

Here, there is absolutely no evidence that Petitioner was prevented from raising his Fourth Amendment claim in state court. California Penal Code \u00a7 1538.5 provides criminal defendants with the right to litigate claims of illegal search and seizure. Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir.1990). Instead of filing a suppression motion in the trial court, however, Petitioner elected to file a motion to exclude the evidence from the phone on grounds that it was not turned over to the defense in a timely manner. (See 1 RT at 2-4, 24-26, 50-52). Although Petitioner’s efforts to have the phone evidence excluded under discovery rules was ultimately unsuccessful, nothing prevented Petitioner from challenging the evidence as illegally seized under the Fourth Amendment. Petitioner has not suggested otherwise. The fact that Petitioner chose not to litigate the constitutionality of the search of his phone is “irrelevant to the operation of Stone v. Powell.” Wagner v. Diaz, 2015 WL 3563026, at *9 (E.D. Cal. May 28, 2015).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

2254 petitioner chose to attempt to exclude cell phone evidence in his state trial based on the claim it was not timely turned over and not that it was illegally seized. That was his choice, and the state did not … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[126],"tags":[],"class_list":["post-50999","post","type-post","status-publish","format-standard","hentry","category-issue-preclusion"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/50999","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=50999"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/50999\/revisions"}],"predecessor-version":[{"id":51000,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/50999\/revisions\/51000"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=50999"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=50999"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=50999"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}