Andre Terrell v. Ed Sheldon ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0028n.06
No. 20-3494
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jan 13, 2021
DEBORAH S. HUNT, Clerk
ANDRE TERRELL, )
) ON APPEAL FROM THE UNITED
Petitioner-Appellant, ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
v. ) OHIO
)
ED SHELDON, Warden, )
) OPINION
Respondent-Appellee. )
Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.
SILER, Circuit Judge. Andre Terrell appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 habeas petition alleging error in the Ohio state courts’ resolution of his Fourth Amendment
violation argument. We AFFIRM.
In 2016, Terrell was convicted of various drug offenses in Ohio state court. Before his
trial, Terrell moved to suppress certain evidence, in part, because the search warrant used to search
his hotel room and seize items therein was allegedly “defective.” Although Terrell made numerous
arguments attacking the validity of the search warrant, he impliedly concedes that he did not
specifically make the argument that the warrant lacked sufficient particularity; rather, Terrell
argues that he did not need to specifically make such an argument because “[t]he Ohio Supreme
Court’s decision in [State v.] Castagnola[, 46 N.E.3d 638 (Ohio 2015)] holds that the issue of
particularity of a search warrant is implicit in a probable cause analysis.” Therefore, Terrell argues,
by challenging probable cause at the suppression hearing, his particularity argument was
Case No. 20-3494, Terrell v. Sheldon
preserved, and the Ohio Court of Appeals erred when it found that Terrell “waived all but plain
error [review]” of that issue.
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state prisoner 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, 482 (1976). “Stone precludes habeas
review ‘where the State has provided an opportunity for full and fair litigation of a fourth
amendment claim . . . .’ This circuit . . . [has] concluded . . . that the state court need do no more
than ‘take cognizance of the constitutional claim and rule in light thereof.’” Riley v. Gray, 674
F.2d 522, 525 (6th Cir. 1982) (citations omitted). “Stone and Moore v. Cowan, [560 F.2d 1298(6th Cir. 1977),] . . . require a district court to make two distinct inquiries in habeas proceedings.
Initially, the district court must determine whether the state procedural mechanism, in the abstract,
presents the opportunity to raise a fourth amendment claim. Second, the court must determine
whether presentation of the claim was in fact frustrated because of a failure of that mechanism.”
Id. (citations omitted).
Terrell concedes a sufficient procedural mechanism in the abstract but argues a failure of
that mechanism. Specifically, he argues that the Ohio Court of Appeals’ decision to review his
particularity argument for plain error rather than de novo “frustrated” the presentation of his Fourth
Amendment claim. A review of the Ohio Court of Appeals’ opinion rejecting Terrell’s
particularity argument, however, reveals that Terrell’s contentions are meritless. State v. Terrell,
95 N.E.3d 870, 895–97 (Ohio Ct. App. 2017).
Glaringly omitted from Terrell’s briefs is any argument as to how the Ohio Court of
Appeals’ review of his particularity argument under the plain error standard precluded him from
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“an opportunity for full and fair litigation of [his] Fourth Amendment claim[.]” Stone, 428 U.S.
at 482. The Ohio Court of Appeals applied the very substantive Castagnola framework for
analyzing particularity that Terrell would seemingly have had that court apply under de novo
review. In arguing to this court that his particularity argument should have been reviewed de novo
because it was preserved, Terrell heavily relies on Castagnola for its proposition that “[w]hen an
issue of law that was not argued below is implicit in another issue that was argued and is presented
by an appeal, we may consider and resolve that implicit issue.” Castagnola, 46 N.E.3d at 655
(citation omitted) (quotation marks omitted). The Ohio Supreme Court in Castagnola analyzed
the substance of a defendant’s particularity argument after finding that argument implicit in the
defendant’s generally preserved probable-cause argument. Id. at 655–56. Before the Ohio Court
of Appeals, Terrell heavily relied on Castagnola for its substantive proclamations regarding
particularity. Importantly, the Ohio Court of Appeals in Terrell applied the same particularity
framework applied in Castagnola to that defendant’s preserved particularity argument. Compare
Terrell, 95 N.E.3d at 896 with Castagnola, 46 N.E.3d at 657. The Ohio Court of Appeals
ultimately concluded that the portions of the warrant Terrell alleged were worded too broadly were
sufficiently particular when viewed in the context of the entirety of the warrant. Terrell, 95 N.E.3d
at 896.
In other words, the Ohio Court of Appeals concluded that Terrell’s particularity argument
was based on an improper isolation of certain “catchall” provisions of the warrant that “must be
read in conjunction with the list of particularly described items which preceded it pertaining to the
crimes alleged.” Id. (citation omitted) (quotation marks omitted). Contrary to Terrell’s assertions,
therefore, that court “addressed the constitutional issue of the particularity of the search warrant.”
Terrell does not explain what more the Ohio Court of Appeals should have addressed, giving this
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court no reason to believe that he was not afforded “an opportunity for full and fair litigation of
[his] Fourth Amendment claim[.]” Stone, 428 U.S. at 482. This is especially evident in Terrell’s
failure to cite any precedent refuting the assertion that plain error review does not run afoul of
Stone. See, e.g., Harmon v. McCollum, 652 F. App’x 645, 652 (10th Cir. 2016) (“Harmon argues
that the trial court violated his Fourth Amendment rights by admitting evidence obtained during
an illegal search of his mother’s home. . . . The [Oklahoma Court of Criminal Appeals] reviewed
this claim for plain error . . . . [W]e conclude that court rejected Harmon’s argument on the merits
after full and fair consideration.” (citations omitted)); Kelley v. Jackson, 353 F. Supp. 2d 887, 893
(E.D. Mich. 2005) (“Michigan has a procedural mechanism that presents an adequate opportunity
for a criminal defendant to raise a Fourth Amendment claim. . . . The Michigan Court of Appeals
concluded that Petitioner had failed to properly raise the issue, reviewed the claim for plain error,
and denied relief. Given this record, it is clear that the Michigan courts were cognizant of
Petitioner’s Fourth Amendment claim and that he received all the process he was due.
Accordingly, any claim concerning the validity of Petitioner’s arrest is not cognizable on habeas
review pursuant to Stone v. Powell.”).
Indeed, Ohio’s plain error test first requires “an error, i.e., a deviation from a legal rule.”
State v. Barnes, 759 N.E.2d 1240, 1247 (Ohio 2002) (citations omitted). In determining whether
an error occurred, the Ohio Court of Appeals applied substantive Fourth Amendment particularity
law to reject Terrell’s use of isolated statements from the warrant to allege a Fourth Amendment
violation. Terrell, 95 N.E.3d at 896. In other words, the Ohio Court of Appeals reached the merits
of Terrell’s argument in the same way it would have under a different standard of review. Riley,
674 F.2d at 527 (“[F]ederal habeas relief is available when a criminal defendant is not allowed to
fully present his fourth amendment claim in the state courts because of unanticipated and
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unforeseeable application of a procedural rule which prevents state court consideration of the
merits of the claim.” (emphasis added)). Again, Terrell does not articulate what more the Ohio
Court of Appeals needed to review to afford him a sufficient opportunity for a full and fair
examination of his particularity argument. Unlike in Riley where this court found the petitioner’s
presentation of his Fourth Amendment claim frustrated when the state court sua sponte rejected
the petitioner’s Fourth Amendment argument on standing grounds to which the petitioner never
had an opportunity to respond, see id. at 524, 526–27, the Ohio Court of Appeals here directly
addressed the substance of Terrell’s briefed particularity argument in finding Terrell’s use of
isolated statements from the warrant to be an incorrect application of the particularity doctrine.
AFFIRMED.
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