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Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

by Dale Chappell

The slam dunk for federal habeas claims, if such a thing exists, would be a claim that successfully challenges the evidence in a criminal case. By tossing the unlawfully-obtained evidence, not only would the conviction be overturned, but the prosecution wouldn’t have a case for a new trial. The prisoner walks free.

But the reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here’s a look at some successful cases but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what’s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn’t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule’s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement, so they won’t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme Court has created a formidable barrier to Fourth Amendment habeas claims: “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.” Stone v. Powell, 428 U.S. 465 (1976).

The Supreme Court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn’t have much force in deterring law enforcement if it’s invoked years later in a habeas case. It also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993). The Withrow Court instructed that the rule in Stone is not a jurisdictional bar to habeas relief, so the prosecution could waive or forfeit the “defense.” It emphasized that Stone applies to only Fourth Amendment claims and refused to extend the prohibition to other constitutional claims.

Because over 95% of convictions in this country are resolved by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983): “when a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized.” (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the prohibition in Stone with respect to Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (“IAC”) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court determined that an IAC claim regarding counsel’s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim entails: “A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claim] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.” Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005). Note that the Court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court’s decision was wrong. Id. 

An example of the absence of a full and fair opportunity to litigate a Fourth Amendment claim is when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another is when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it’s like the one in Kimmelman. You must challenge the knowing and voluntary nature of the guilty plea and show that counsel’s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [McMann v. Richardson, 397 U.S. 759 (1970) (dealing with IAC claims)].” Id.

While Kimmelman allowed that counsel’s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel’s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel – but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here’s an example of a successful Fourth Amendment habeas claim by a state petitioner. In United States ex rel. Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief under 28 U.S.C. § 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the District Court ruled that the claim was barred by Stone, the Court of Appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the District Court.

The Bostick Court established a two-step process for determining whether the state court provided a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that prevented the petitioner from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner’s claim,” the Bostick Court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined,” the Bostick Court reasoned.

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. § 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also ruled that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under § 2255 claimed that his guilty plea wasn’t valid due to counsel’s failure to challenge the drug evidence obtained during an illegal search. While the District Court denied relief, stating that Stone barred his Fourth Amendment argument, the Court of Appeals vacated that decision and concluded that the IAC claim bypassed the Stone bar. Id. On remand, the District Court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

Conclusion

Fourth Amendment claims in federal habeas corpus are undoubtedly complex. There are many obstacles, but there are also ways around those obstacles. Plan your route accordingly, and you’ll win federal habeas relief on your Fourth Amendment claim. 

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