Scott Oberst v. Amy Ardikovic

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Ilana Diamond Rovner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6849398-1] [6849398] [16-3734]

Case: 16-3734

Document: 34
Filed: 06/21/2017
Pages: 2
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2017
Decided June 21, 2017
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge

No. 16-3734
SCOTT E. OBERST,
Petitioner-Appellant,

Appeal from the United States District
Court for the Eastern District of
Wisconsin.

v.
No. 2:15-cv-01009-DEJ
AMY ARDIKOVIC,
Respondent-Appellee.

David E. Jones,
Magistrate Judge.
ORDER

Scott Oberst filed an appeal challenging the district court’s denial of his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because he has not presented



We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

Case: 16-3734

No. 16-3734

Document: 34

Filed: 06/21/2017

Pages: 2

Page 2

any argument that would warrant reversal of the district court’s judgment, we affirm
the denial of his petition.
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 (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, 132 S.Ct. 945 (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.
Oberst did not move or argue for an expanded COA to address the Stone issue.
He fails to make any argument pertinent to the bar established by Stone in his appellate
briefs, and nowhere does he contest the district court’s determination or the appellees’
contention that he was provided the full and fair opportunity to litigate his claim in the
state courts. That omission is fatal. Any consideration of the merits must grapple with
the Supreme Court’s determination in Stone that “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.” 428 U.S. at 494; see
also Monroe v. Davis, 712 F.3d 1106, 1112–13 (7th Cir. 2013). Nothing Oberst has said
reveals the existence of any exception to that bar. This also means that we have no need
to consider the question whether Oberst’s case would be affected by the resolution of
Carpenter v. United States, No. 16-402, cert. granted, June 5, 2017. Carpenter deals with a
different question in any event: whether the warrantless seizure and search of historical
cell-phone records is permitted by the Fourth Amendment.
We therefore AFFIRM the denial of Oberst’s petition for a writ of habeas corpus.