Habeas Corpus Appeal Dismissal
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98 CJ C.A.R. 1578
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Christopher L. JOHNSON, Petitioner-Appellant,
v.
Ari ZAVARAS; Gail Norton, Attorney General of the State of
Colorado, Respondents-Appellees.
No. 97-1253.
United States Court of Appeals, Tenth Circuit.
March 30, 1998.
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit
Judges.
ORDER AND JUDGMENT*
MARY BECK BRISCOE, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case
is ordered submitted without oral argument.
Christopher Johnson appeals the district court's dismissal of his petition for writ
of habeas corpus under 28 U.S.C. 2254. He contends his state convictions of
burglary and theft are invalid, arguing his arrest and the search of the residence
where he was staying violated the Fourth Amendment and his statements to the
police were coerced and not preceded by a valid advisement and waiver of his
rights. An appeal cannot be taken to this court in a 2254 proceeding unless
the petitioner has obtained a certificate of appealability by making a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253. We deny a
certificate of appealability and dismiss the appeal.
3
A federal court cannot grant a habeas application by a state prisoner if the
claim was decided on the merits in state court, unless the decision was contrary
to or involved an unreasonable application of clearly established federal law as
determined by the Supreme Court or was based on an unreasonable
determination of the facts in light of the evidence presented in state court. 28
U.S.C. 2254(d). Federal courts must presume the state court's determination
of factual issues was correct unless the prisoner rebuts the presumption by clear
and convincing evidence. 28 U.S.C. 2254(e)(1).
The record of Johnson's appeal in state court indicates he challenged the
constitutionality of the arrest, the search, and the statements. The state courts
decided those claims on the merits, concluding the arrest and search were
lawful and Johnson's statements to the police were voluntary. Fourth
Amendment exclusionary rule claims are not cognizable in federal habeas
corpus proceedings if the petitioner had an opportunity for full and fair
litigation of the claim in state court. Stone v. Powell, 428 U.S. 465, 494, 96
S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Johnson had a full and fair opportunity to
litigate his Fourth Amendment claims in state court and federal habeas relief
cannot be granted on those grounds.
Although Fifth Amendment and Miranda claims are cognizable on federal
habeas review, see Withrow v. Williams, 507 U.S. 680, 688-94, 113 S.Ct.
1745, 123 L.Ed.2d 407 (1993), Johnson has not shown the state court decision
violated clearly established federal law or that it was based on an unreasonable
determination of factual issues. While a confession induced by improper
promises is involuntary, see Arizona v. Fulminante, 499 U.S. 279, 285-86, 111
S.Ct. 1246, 113 L.Ed.2d 302 (1991), in concluding Johnson's statements were
voluntary, the state court specifically found police witnesses were more
credible than Johnson, that Johnson was properly advised of his rights before
making his statements to the police, and the police made no threats or promises.
A state court's determination of the voluntariness of a confession is not an issue
of fact presumed correct under 2254, but an underlying factual determination
that the police did not engage in coercive conduct is presumed correct. Miller v.
Fenton, 474 U.S. 104, 110, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Because
the state court found no threats or promises were made, Johnson's involuntary
confession claim fails and the finding that he was properly advised of his rights
before making his statements disposes of his Miranda claim.
We DENY a certificate of appealability and DISMISS the appeal. The mandate
shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
