James R. Woolery v. A.J. Arave, Warden, Idaho Maximum Security Institution

say it was harmless. See United cannot (9th Cir.1992) Kerr, v.

States reversal); vouching cause for

(prejudicial (9th Cir.1991) Borg, 951 F.2d 1011

Brown

(reversal prosecutor knowingly where intro evidence). argued from false

duced this, judiciary especially like situation — primary before which the misbe

the court place may supervi

havior took exercise its sory power to make it clear that the miscon serious, government’s un

duct up

willingness own to it was more serious steps

still and must be taken to avoid a

recurrence this chain events. We judgment

therefore VACATE the of convic

tion and REMAND for the district court to retry

determine defendants prejudice dismiss indictment with as a government’s sanction misbehavior.

See United States

—,—, 118 L.Ed.2d (1992) (supervisory power ‍​‌​​​‌‌​​​‌‌​‌​‌‌‌‌​​​​​​‌​​​​​‌‌​‌​‌‌‌​​‌‌‌‌‌​​‍“may be used establishing pros-

as a means of standards of conduct

ecutorial before the courts them

selves.”); Bernal-Obeso, United States v. (9th Cir.1993); United States v. Cir.1991);

Restrepo, 930 F.2d Barrera-Moreno,

United States Cir.1991). WOOLERY, Plaintiff-Appellee, R.

James ARAVE, Warden,

A.J. Idaho Maximum

Security Institution, Defendant-

Appellant.

No. 91-36029. Appeals,

United States Court

Ninth Circuit.

Argued and March Submitted Decided Oct. Scott, Hackney, Hackney Gar Lynn, &

Jackson, Boise, ID, plaintiff-appellee. Gen., Stahman, Myrna Atty. A.I. Asst. Bоise, ID, defendant-appellant. further the deterrent and

corpus would not rule to an extent purposes of the educative negative effect such to counter the sufficient CANBY, WRIGHT, Before: judi have the interests of policy would on REINHARDT, Judges. Circuit efficiency, at comity and federalism. Id. cial 3051-52; 493-494, at id. CANBY, Judge: Circuit —, —, grant of the district court’s appeals Idaho 1745, 1750, 123 L.Ed.2d 407 113 S.Ct. for a writ of habeas petition Woolery’s (“[W]e James simply concluded in Stone alleged he Woolery’s corpus. exclusionary rule on applying the costs of relief because evidence to entitled outweighed potential collateral review at his trial introduced test alcohol blood advantage gained applying of his in violation was obtained court there.”). response rights. In its Amendment Fourth language of There is no indication in district Woolery’s petition opinion Court intended neglected assert that the of Idaho State only apply when the state rule to by the rule of Stone barred claim was contrary, fashion. On the raised it 3037, 465, Powell, 96 S.Ct. 428 U.S. the rule is a made clear that the Court (1976). The scope of the categorical limitation on the consequently reached and the exclusionary rule: Amendment the merits does not mean that the feder- Our decision court’s from the district appeal claim. On jurisdiction over such a al court lacks argues Woolery’s petition, Idaho grant of claim, but required to raise the Stone that it was not has to cases in which there defense, that, rule is limited affirmative rule an showing ... a [sic] [that been both Stone, Woolery’s petition should be light of provide court did not denied. fairly fully liti- opportunity an whether, us before gate claims] Amendment his Fourth showing the state denied a full absent a Fourth Amendment violation. litigate opportunity to the Fourth 37, Id. at 495 n. 96 S.Ct. at 3053 claim, Stone v. the rule of Pow Amendment added). (emphasis enforcing court from precludes the federal ell exclusionary through the writ of rule exclusionary is a rule creation corpus though the state has even habeas Morrison, judiciary. Kimmelman issue. conclude failed raise the Stone We 106 S.Ct. Accordingly, that effect. that Stone has (1986). decisions, In a series reverse and remand. given shape Supreme has the rule Court S.Ct. at and definition. U.S. at DISCUSSION Powell, In Stone v. the Court limited Powell, petitioners Supreme in habeas the occasions on provided proceedings challenge an could a state court’s held that “where the State failure to on Fourth opportunity and fair excludе evidence claim, prisoner grounds; a state ‍​‌​​​‌‌​​​‌‌​‌​‌‌‌‌​​​​​​‌​​​​​‌‌​‌​‌‌‌​​‌‌‌‌‌​​‍Amendment the claim en could.be corpus only when the had not granted federal habeas tertained not be adequate opportunity litigate his that evidence obtained had an ground relief in state court. search or seizure was Fourth Amendment claims an unconstitutional (stating id. at introduced at his trial.” Id. S.Ct. See through enforcing holding grounded negligible benefits derived 3052. The exclusionary through pro rule Court’s conclusion that cases where ceedings outweighed claim has would be resultant tioner’s Fourth Amendment been comity). court, enforcing adequately litigatеd in state intrusion federalism Accord ingly, showing by exclusionary through we conclude that absent writs Woolery afford that the state did not adequate on his Fourth

him appeals court retains discretion to refuse claim, may not the federal court Boardman, recognize the defense. through claim award relief for the enforce- F.2d at 1537. Boardman is different from exclusionary ment of the rule. our At holding case. the core of the in recognition Boardman is the courts reading Our is consistent our that Stone with City Angeles, in Hernandez v. Los there are some decision circumstances under which Cir.1980), F.2d n. 3 in which 937 appeals an court’s refusal to entertain a we held that a “fourth amendment claim is untimely state’s new rule defense will not cognizable basis for not as a federal habeas principles comity intrude on the and feder relief, oppor- provided where the has cases, alism. at Id. 1536-37. In such the tunity full and fair of the claim” appellate court is not to raise the added). (emphasis language This indicates Teague 1536; sponte. rule sua at Id. see unless the court that the district finds Greer, Granberry 481 U.S. requisite showing, petitioner has made the S.Ct. (appeals grant peti- the court not relief on the qualified court retains address While tioner’s claims. corpus merits of habeas petitioner’s claims requirement prudential this rather when fails to assert in district court jurisdictional, it is in policy than founded proceedings not exhaust oblige considerations that the court to raise remedies). ed state court if sponte neglects the issue sua the state assert it.1 Accord Davis v. language reasoning of the Stone Cir.1986).2 F.2d compel decision different conclusion present In part, based Stone is on the We are mindful that our recent decision judicial efficiency, same fi considerations Estelle, in Boardman v. 1534- — nality, federalism underlie (9th Cir.) curiam), denied, (per cert. procedural requirements surrounding federal —, 297, 121 U.S. Stone, 491 n. habeas. See 428 U.S. at when a ruled that state has failed 31; at Teague raise in court the district “new defense, Lane, at —, Teague rule” 113 S.Ct. at 1750. But the exhaust, dealing We are 1. with case where and that it not a federal was therefore neces- sary question. court determined to invoke to deal with the Stone It also Stone v. Powell being added the state had because the as not raised Stone Fourth Amendment claim that, rule, argument, non-jurisdictional as a patently serted was without merit. See Tart v. Massachusetts, sponte. (1st the cоurt need not raise it sua Id. at Cir. 497 n. 6 Judge 1991). would not have 1219-20 n. Posner express opinion propriety We on the no considered exhaustion issue "since the procedure. of that tion for habeas event frivolous in light v. Powell." Id. of Stone requirement 2. The dissent takes issue our Massachusetts, (1st In Tart v. 949 F.2d 490 sponte, that the district invoke court Stone sua 1991), preliminary the court Cir. stated: "As only provides permis- and states that Davis for a matter, Tart neither nor the Commonwealth sponte appel- by sive invocation of Stone sua as to raised the issue in the district court wheth late court. We see little distinction in effect opрortunity' er Tart afforded a 'full and fair was Davis, ruling of our and that in Davis. In present his claim in state fourth amendment apply obliged Fifth Circuit "we are stated: showing petitioner, such court. Absent prudential Stone as a limitation on the exercise comity require principles here, jurisdiction of our even if it must be raised review of fourth amendment claims be refused.” Davis, sponte." sua F.2d at 1372-73. If n. 6. noted Id. at 497 The court also appellate obliged apply sua relying peril was state’s fail must, sponte, prac- then the as a issue, light ure to decisions in the matter, tical do well. so as recognizing discretionary authority Fifth Circuit other two circuit court decisions cited of the court to raise Stone support the dissent weak it would offer but for overlook- Id. The Tart then stated that ing rely on the it was in Stone rule when state fails to raise it need to default because Duckworth, Supreme agreement with the Court of fashion. In Wallace v. Judicial (7th Cir.1985), on the Fourth issue. court held that Massachusetts prisoner’s petition must be dismissed for failure Id. claims in ha- were the court would have reviewed the remaining considerations exclusionary proceedings as a matter of course. inherent in the beas limitations that, Stone, itself; probative” Suрreme evi made it clear “the most excluded dence, sup scrupu- value that if procedural requirements all deterrent followed, proceedings lously direct a fourth amendment claim ported its by applying it materially enhanced to be enforced exclusion of evidence not Stone, 428 at 489- proceedings. review. in habeas on collateral 493-94, “In 3051-52. of the exclusion the contribution this context CONCLUSION rule, any, to the effectuation ary We the district court’s deci reverse minimal the sub Amendment is and granting Woolery sion habeas relief without application of of the costs stantial societal re of We consideration Powell. at 494- persist special with force.” Id. proceedings for to afford Wool mand further (footnote omitted). at 3052-53 ery opportunity show that the state to ruling in Court couched its terms The oppor full fair court did not offer him a and eligible requirement: To be for habeas relief tunity litigate to Fourth Amendment his claims, petitioner a Amendment on Fourth showing, a claim.3 If fails to make such he that the state court has must demonstrate his claim must dis be him full fair on not a afforded missed. claims. Id. at 494 n. those AND REMANDED. REVERSED categorical n. as 37. We read Stone applicability limitation on the of fоurth REINHARDT, dissenting: Judge, Circuit exclusionary in rules habeas cor amendment proceedings.’ id. at 96 S.Ct. at pus See I.

3053; Kimmelman, 477 corpus not a The Great Writ habeas very days. true, popular argues, as the dissent that when instrument these Sur- It is habeas, judiciary it types urged prisingly, are is the federal of claims on procedural ‍​‌​​​‌‌​​​‌‌​‌​‌‌‌‌​​​​​​‌​​​​​‌‌​‌​‌‌‌​​‌‌‌‌‌​​‍appears increas- barrier to to find the use the writ often consider will See, petitioner ingly A does not assert it. distasteful. habeas be waived if state Anderson, procedural land- cross a field filled with e.g., must Jenkins may be 65 L.Ed.2d 86 mines before the merits of his claims n. (default failing in federal court: exhaustion reme- in to rаise self-incrimi- heard writ, dies, default, trial state’s abuse nation in state waived claim Bunnell, it); help of etc. must do so without the Suniga Often he failure assert (failure (9th Cir.1993) object no lawyer because there is counsel attack, process though fundamental that violated due no collateral even to instruction default). ordinarily at rights constitutional stake. bar when state has asserted cases, however, provide abun- nothing in- The various doctrinal obstacles those there was entertaining officials to fore- appropriate opportunities about the constitu- dant state court; on the merits thе habe- tional for relief no close decision claim occurred, simply by resorting proce- procedural defaults had the federal that, litigate. opportunity to suggest the full and fair seems to because made on dissent judge simply Woolery argued reviewed fourth trial The district in his brief that he had not novo, de con- and reached a opportunity amendment merits been afforded a full and fair to liti- magistrate contrary judge to the clusion gate state did his claims Woolery. contrary, magistrate favor to the justified Woolery's judge agree fail- the district court were con- We dissent cluding opрor- had not had he had not been afforded that assert in his that he ure to tunity. opportunity litigate his claim That is not manner which the full and' judge proceeded. light All that this fatal in of his trial brief. that, means, however, Woolery judge leniency is now magistrate because is that ruled issue; he has his case on that State had not raised the "affirmative defense" of entitled make Stone, apply ruling No waived it. he would not it. attorneys magistrate han- arguments. judge The states’ before the dural to whom Wool- presumably cases are well- dling ery’s petition had been referred under litigators possess, or 636(b).3 and skilled who trained object U.S.C. section Idaho did not with, very ought charged least to be at the judge’s to the district consideration of the knowledge law. governing detailed Woolery’s petition merits of long until after usually They advantages have all the on their rejected magistrate he had judge’s rec- they litigate against a habeas side when and granted'Woolery’s ommendation It is tioner. difficult me to understand corpus application. Only appeal did the circumstances, why, these states’ under when contend, change legal position attorneys legal fail to raise the appropriate time, first consideration of the ease, arguments given in a the courts should Woolery’s petition merits of was barred very types that we are excuse failures argued, Stone v. It Powell.4 without to excuse unwilling petitioner when the citing any supporting authority, that Stone all, party supposed in default. After ours is requires a district court to amake determi- adversary handed-system to be an and even nation has received is, justice. truly If it should not fair opportunity litigate his Fourth who forfeits his when he claims state court even where fails to raise them a manner.1 ‘ the state asserted that he did. case, In the state failed to this of Idaho By excusing Idaho from what was either challenge Woolery’s James conten incompetent representation or an ill-advised Powell, the rule of tion that Stone v. litigation strategy by accepting respon- 49 L.Ed.2d 1067 interpretation Powell, dent’s novel of Stone v. bar did not consideration of his Fourth effect, majority, the creates for the benefit Amendment claims on collateral review. attorneys of an states’ un- unwarranted and pretrial Woolery specifically his brief stated precedented exception from the rule that dis- key that issue” “[t]he before the obligation trict courts are under no raise “provided op he had been an sponte.5 non-jurisdictional issues sua In do- for full portunity and fair of his so, ing my colleagues Woolery misconstrue the amendment claim.”2 assert theo- fourth not, Supreme retical basis for the ed that he had and at no time did the Court’s decision allege argue Respondent Additionally, majority’s the otherwise. Stone. deci- prevailed Woolery’s approach by the merits of claim sion with the all conflicts taken example, Woolery's petition 1. For state habeas who fused to decide appeal days right three ground. files his late forfeits his court, claims heard have his in federal even facing among is when he execution and his may party in this circuit While the rule is that a one that he v. claims is Coleman innocent. appeals legal pursue in the of claims of - -, Thompson, U.S. 111 115 S.Ct. objec- by magistrate judge error even where no (1991). v. tion was raised district Barilla Ervin, (9th Cir.1986), 886 F.2d Although Woolery alleged the lack full and case, principle dispositive the is not here. In this pre-trial in his than fair brief rather raise the state failed to relevant issue before petition, his habeas state does not magistrate any significance judge or the error is of and has district court. this technical argument. thus forfeited The state's conten- Woolery’s tion brief deficient was somehow light majority’s 5. The decision is ironic in using phrase "fair rather consideration" holding panel of civil of another this court that litigation” than "full is not incor- rights quali plaintiffs who fail to cite the relevant terms) (he contrary rect used both but is to the immunity to the fied cases district court forfeit pro litigants to the rule that se are not held appeals have the court their correct proficiency standards of technical im- judge's Holloway, legal errors. Elder v. upon posed members of the Given the bar. Cir.1991), (9th F.2d 1112 amended 975 F.2d appeal, cirсumstances of this criti- state's (9th Cir.1992), granted,-U.S.-, cert. adequacy Woolery's cisms of submissions (1993). Given inappropri- particularly in the district court are disparity in resources between civil ate. attorneys, plaintiffs states’ the double stan surprising. particularly 3. Because the state's failure to address the dard is issue, Powell re- Stone v. non-jurisdictional of no other defect that have considered aware circuits the other our must raised a district court on a number of own that be ignores question and fact, accord; colleagues neglect ex- rule that a My own is settled precedents. obligation to invoke the why a failure court is under no plain state’s any differently be treated sponte unless it relates to sub should issue sua doctrine proce- petitioner’s See, to raise ject jurisdiction. e.g., from its failure Valenzue matter (9th holds default, Inc., our case law Kraft, dural la (if raised. The end Cir.1986) unless jurisdic be forfeited timely filing of action majority errone- all is that this result raise issue then district court must tional judicial to foreclose permits the state ously not, sponte; then lack of timeliness of the merits review non-assertion) amended 815 F.2d waived petition. (9th Cir.1987). result, in As a all but name, majority has transformed Stone II. into principle equitable Powell’s majority acknowledges, Stone’s jurisdictional prerequisite. As litigation” any' not in “full and fair majority’s holding conflicts with E.g., jurisdictional. sense approaches of three other circuits. The Sev — —, —, U.S. S.Ct. enth Circuit has held that court need (1993). Instead, 123 L.Ed.2d raise Stone v. Powell sua Wallace prudence equity. on concerns of rests Duckworth, n. 1 at—, Id.; id. Cir.1985). majority cites the Fifth While the (O’Connor,J., part concurring and dissent in Davis v. Circuit’s decision at—, ing part); id. Cir.1986) curiam), (per F.2d 1371 J., (Scalia, concurring part and dis own, being in “accord” its Davis is senting part). in Habeas relief There, actually in it. a conflict with divided in The decision equitable nature. itself panel appel Fifth Circuit that an the held particular to writ in a grant whether late court raise Stone v. Powell sua upon depends a number factors instance sponte.6 It did not hold a district court including: peti of relief to the the benefit required do As First so. Circuit tioner, reliability judgment under in in a case which it reached merits federalism, noted attack, finality, effective part of Fourth claim in judicial a Amendment habeas federal resources. utilization scarce — Withrow, at—, failed raise Stone because the state had 113 U.S. See Davis is based on the upon weighing of these fac 1750. Based its tors, the v. Powell Court determined exercise of discretion. Tart v. Massachu Stone (1st Cir.1991). setts, 490, equitable district court in its n. that a federal 949 F.2d If, concludes, really to entertain ha- ought majority refuse a as the states petition alleging a violation incapable forfeiting beas v. Powell were Stone petitioner unless did it and district courts were mandated raise hearing full fair not receive a own, then on their court on that claim. raise would be the bar them words, every In selves either formally recognizes majority While categorically prohibits a federal court jurisdictional, proposition is not it that Stone entertaining from a where a nevertheless rules that federal district hearing lack of a full and fair absolutely precluded court is from consider- provides only it been shown or basis ing petitioner’s Fourth Amendment claims discretionary authority eq when exercise unless it finds that he did not receive a first so dictate. Three cir hearing. Indeed, majority uitable considerations full and fair approach; have the latter cuits taken holds that district court must raise the majority has the former. hearing sponte. fair I am the endorsed issue own, raising Judge on its but erred in Stone v. Powell For reasons set forth Rubin’s dissent, persuasive Seе III. majority I is another matter. section think Davis infra justify majority attempts application. its The “cate See Jenkins Anderson, gorical language basis of limitation” on the 234 n. U.S. petition v. Powell that a (1980);

footnote 37 of Stone 2127 n. Suniga of a full Bunnell, er must show the lack Cir.1993). 998 F.2d hearing.7 428 at 494 96 S.Ct. at U.S. simple: equities The reason is The that nor Although 3052 n. 37. that footnote is some mally weigh against proce consideration of a susceptible what unclear and therefore to an durally claim, finality defaulted and federal overly reading, simply does broad it not an ism, do equivalent not have force where a question majori swer the us аnd the before has not compli asserted an interest in ty’s misplaced. Nothing reliance on it procedural ance with its own rules in the where, here, suggests footnote 37 a petitioner’s corpus proceed federal habeas hearing that his was not full claims ings. Ryan, See Harmon v. fair, and the state fails to other 1992). Thus, Cir. a state does not wise, judge a district cannot decide that the procedural default issue in the dis the. point state has conceded the and reach the court, may trict it on appeal. forfeit petition. merits of the The footnote nowhere Similarly, finality and federalism do not implies that a district court must raise Stone justify a requiring federal courts to re v. Powell sua fuse hear Fourth Amendment claims a state must raise Stone distinct from the where state fails to assert interest one footnote 37 answers —that integrity adjudication prior its own must show the lack of full and fair respect them. Concerns of federalism and once the issue is the state. raised for a judgment marginal state’s criminal procedural clearly The law of defaults procedural a state where commits a forfei demonstrates the error that underlies the Estelle, ture. Boardman v. majority’s overreading of foоtnote 37. Like (9th Cir.) curiam), denied, (per cert. Powell the default doc —, equitable principles. trine is upon based (1992). Comity require a does not court to Withrow, at—, S.Ct. at 1757 state’s advocate. Davis v. (O’Connor, J., concurring dissenting). (Rubin, J., dissenting). F.2d at 1375 language remarkably similar to that found majority acknowledge simply fails to that its in footnote 37 the has held: exemption blanket of state forfeitures In all prisoner cases in a state cannot be recon cases defaulted his federal claims state court procedural ciled with our default law. pursuant independent adequate to an rule, procedural state federal habeas re- bottom, At Powell a the Stone v. rule is view of the claims barred unless is principles. preclusion derivative of issue See prisoner can cause for demonstrate v. U.S. at— prejudice default and actual from the viola- — —, (Scalia, J., concur 1767-68 tion of federal law or demonstrate that ring (tracing history dissenting) of full failure to consider the claims will result in Ordinarily, litigation principle). if a miscarriage justice. a fundamental of already prevailed in the party has prior a but U.S.—,—, issue on occasion does not Coleman Thompson, 2546, 2565, (1991) potentially preclusive effect addеd). determination, previous court has no obli (emphasis a While the burden of estoppel gation sponte. sua showing prejudice” peti raise collateral “cause and is on the Paducah, tioner, absolutely Compare City it is clear that if the Moore v. state Cir.1989) (under fails to raise 833 n. 4 Fed. the doctrine de 8(c) fault, estoppel pled a federal court reach the R.Civ.P. collateral must be merits of magistrate judge's judge imprecisely magistrate 7. The described district court to the terminolo- Stone v. Powell "affirmative gy bar as an defense”. the merits Wool- his decision to on description Whilе footnote 37 shows that this is ery's claims. incorrect, technically objected never Idaho waived)8 in the district court Mar- v. brief as well as McCain deemed or it will be meaningfully distinguish that & 2 1032-34 tinez does Apodaca, 793 F.2d (a Cir.1986) pre to raise instant one. Martinez shows permitted is case from the Alyes sponte); argument accord a ‍​‌​​​‌‌​​​‌‌​‌​‌‌‌‌​​​​​​‌​​​​​‌‌​‌​‌‌‌​​‌‌‌‌‌​​‍not fall sua that case does clusion doctrines that an States, 688 Pipeline Co. v. United cognizable Serv. on habe- ka within the class claims (1982) (a 231 Ct.Cl. 540 through F.2d a failure to raise as can be forfeited necessary, may, raise claim or issue when reasoning controlling here it. Martinez’s is although рur sponte primary preclusion majority’s that and the decision of adverse protection rule is for pose of forfeited is conflict. Powell cannot be party), cert. denied 461 short, not assert an if a state does (1983); finality proceedings, of its interest own al., Wright Prac Alan et 13 Federal Charles it forfeits its to insist Procedure, § 32-33 tice and particular peti- a habeas consider (both may preclusion issue claim and respect tion. That as true with to Fourth is by party preclu entitled demand waived with all others. A Amendment claims as sion). that fails to that a A state federal court is not to raise Stone v. Fourth Amendment claim petitioner’s habeas It choose to do so Powell sua fairly is fully litigated in state court may, equitable its or it in the exercise of exemption from the rule not entitled to an discretion, ap- the merits of a habeas reach preclusion argument is an that can be plication alleging deprivation of Fourth a forfeited. majority’s imposi- rights. The Amendment Assuming argument for the sake duty upon raise the tion of district courts to is majority is correct that Stone v. Powell preclusive prior proceeding effect authority of categorical limitation on the gen- simply precedent, under is unwarranted of Fourth district courts to consider claims corpus, or principles eral the rules pros- occurring violation procedure. clearly I not— ecutions —and believe prevent a would still not such conclusion III. forfeiture Idaho. Such limitations court, While a federal like dis- differently jurisdictional from limita- treated court, permitted trict to raise Ylst, tions.9 In Martinez v. own, I so as a Powell would do (9th Cir.1991), we decided that 1156-57 matter, general nor I do would so argument state could forfeit instant See Davis claim was non-constitutional tioner’s (Rubin, J., It dissenting). cognizable corpus. therefore not practicе, except in limited cir- our standard “no There is no court has cumstances, consider issues authority” grant habeas relief non- parties fail raise in the and I constitutional trial errors. U.S.C. See depart policy reason to from that no 2241(c) 2254(a). However, §§ & in Martinez in Fourth Amendment state forfeitures compelled did not that this fact we conclude Where a violation of constitutional cases. special adoption of a rule for the state’s claimed, rights has a federal court been There, like benefit. we treated the state ordinarily remedy not should litigant by litigating and held alleged of the constitutional violator failures error a cоnstitutional one in the trial court thereby prevent consideration those by failing contrary until to raise a view especially That claims on the merits. true reply appeals, it had its brief petition- in a this one where the case such as argument the error was forfeited deprivation er’s claims of constitutional non-constitutional. That state failed argument opening in its raise the relevant meritorious. 1) Governing supra, Rule Habeas 9. As is demonstrated the limitation here

8. Under Rules 2) Corpus, jurisdictional the Federal Rules of Civil Procedure where issue jurisdictional applied to the extent are the fedеral courts proceed they are not inconsistent with Rules raise the of their Governing Corpus. Habeas Greer, Granberry program 481 U.S. 107 to have a requiring employees to undergo urinalysis S.Ct. 95 L.Ed.2d 119 the Su- after accidents. This suspicion case preme appellate particular Court held that involves that a indi vidual was intoxicated. argu- choose to consider a state’s Skinner rested part on the fact that uniform and petitioner’s ment that a habeas claims are standard investigations pose ized exhausted, far properly less of a threat argument even if the present less was not raised bеfore the district court. The danger of a of overreaching by law enforce rejected explicitly position the state’s ment than do upon intrusions based individu appellate that a federal court must consider alized circumstances. 489 131-33, arguments. such Id. at 107 S.Ct. at 1415; see also United States v. Mar Granberry 1673-74. holds that tinez-Fuente, 543, 559, by courts should decide on a case case basis 3074, 3083, (1975) (routine arguments whether to hear non-exhaustion stop of all vehicles to check for undocu 134-36, presented below. Id. mitigates mented aliens possible abuse of However, at 1675-76. involving cases officers) by Moreover, statе’s failure to raise a Stone v. Powell searches at issue Skinner did not involve objection call for a less lenient and less flexi- fluids, the actual drawing of in distinction to ble standard. the search that Harvey occurred in and in clearly Granberry petition- assumed that a Skinner, present 489 U.S. at 625- present any er could non-exhausted claims to 26, 109 Drawing S.Ct. at 1417-18. blood ais a state court after the initial dismissal of his physically procedure; invasive requiring ‍​‌​​​‌‌​​​‌‌​‌​‌‌‌‌​​​​​​‌​​​​​‌‌​‌​‌‌‌​​‌‌‌‌‌​​‍a federal habeas he could sample urine is not. As the district court thereafter obtain federal review. See id. at correctly determined, Harvey is controlling. 134-35, However, 107 S.Ct. at 1675. Because the state forfeited its interest consequences addressing a non-exhaustion preclusive prior effect of the détermina- quite claim are different from those that Woolery’s tion of Fourth Amendment claim usually follow from a state’s invocation of raising Stone v. Powell before either Stone v. Powell. In cases like the one before judge, or the district I us, outright the result is most often dismissal would reach the petition merits of his opportunity with no further Woolery’s decide them in According- favor. by any consideration of the merits court. ly, judgment I would affirm the of the dis- principle ought Given the basic that we trict court. merits, decide eases on their I believe that presumptively should decline to consider argument a Stone v. Powell when it is raised appeal. Accordingly, first time I

would treat Idaho’s failure to claim is barred Stone as a

forfeiture. America, UNITED STATES of Plaintiff-Appellant, IV. merits, correctly On the the district court FUENTE, Alberto DE LA determined that under our decision United Defendant-Appellee. Harvey, States v. No. 92-10719. Cir.1983), the seizure of blood without his consent inwas violation of his Appeals, United States Court of because he had Ninth Circuit. formally placed not been under arrest. The Argued Aug. and Submitted judge properly rejected magis- Decided Oct. judge’s Harvey trate conclusion that was un- dermined Skinner v. Labor Executives’

Ass’n, (1989). permits Skinner a

Case Details

Case Name: James R. Woolery v. A.J. Arave, Warden, Idaho Maximum Security Institution

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 26, 1993

Citation: 8 F.3d 1325

Docket Number: 91-36029

Court Abbreviation: 9th Cir.