Legaspi v. Cate

Filing 6

ORDER by Judge William Alsup denying 5 Motion for Reconsideration (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 12/10/2010)

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Legaspi v. Cate Doc. 6 1 2 3 4 5 6 7 8 9 10 DIEGO LEGASPI, Petitioner, v. MATTHEW CATE, Respondent. / No. C 10-2731 WHA (PR) ORDER DENYING MOTION TO RECONSIDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Docket No. 5) Petitioner filed this pro se petition for a writ of habeas corpus. The petition was dismissed because the two claims petitioner raised did not present a cognizable basis for federal habeas relief. Petitioner moves to reconsider the dismissal. As explained in the dismissal order, petitioner's claims are based upon his Fourth Amendment rights to be free from an unreasonable search or seizure, which may not be the basis for federal habeas relief. See Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976). Even if the state courts' determination of the Fourth Amendment issues is improper, it will not be remedied in federal habeas corpus actions so long as the petitioner was provided a full and fair opportunity to litigate the issue. Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). All Stone requires is the initial opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this court's inquiry upon habeas petition into the trial court's subsequent course of action. Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986). The existence of a state procedure allowing an opportunity for full and fair litigation of Fourth Amendment claims, rather than a defendant's actual use of those procedures, bars federal habeas consideration of those claims. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990). California state procedure provides an opportunity for full litigation of any Fourth Amendment claim. Indeed, petitioner indicates in his motion that he filed a motion to suppress the evidence based upon the improper seizure, that the trial court heard the motion, and ruled against petitioner. Petitioner claims that there was not a full and fair opportunity to litigate his claim because denied his motion to suppress the fruits of what he asserts was an unreasonable seizure. That petitioner's claim was denied does not mean that he did not have a full and fair opportunity to litigate. Moreover, Stone precludes this court from inquiring on federal habeas review whether the search was reasonable. The motion for reconsideration (docket number 5) is DENIED. IT IS SO ORDERED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: December 10 , 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE G:\PRO-SE\WHA\HC.10\LEGASPI2731.REC.wpd 2

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