Filed: Jan. 23, 2003
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 23 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk RAYMUNDO ROMERO, Petitioner - Appellant, No. 02-6058 v. D.C. No. CIV-01-864-R (W.D. Oklahoma) LENORA JORDAN, Warden, Respondent - Appellee. ORDER AND JUDGMENT * Before HENRY , BRISCOE , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determ
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 23 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk RAYMUNDO ROMERO, Petitioner - Appellant, No. 02-6058 v. D.C. No. CIV-01-864-R (W.D. Oklahoma) LENORA JORDAN, Warden, Respondent - Appellee. ORDER AND JUDGMENT * Before HENRY , BRISCOE , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determi..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 23 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAYMUNDO ROMERO,
Petitioner - Appellant,
No. 02-6058
v. D.C. No. CIV-01-864-R
(W.D. Oklahoma)
LENORA JORDAN, Warden,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner-Appellant Raymundo Romero appeals from the district court’s
order denying his petition for a writ of habeas corpus. In order for Mr. Romero to
proceed on appeal, we must grant him a certificate of appealability (COA).
28 U.S.C. § 2253(c)(1)(A). A COA will only issue “if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
Upon consideration, we deny a COA and dismiss this appeal.
Mr. Romero makes two basic arguments in support of his entitlement to a
COA. First, he argues that Stone v. Powell , 428 U.S. 465 (1976) does not bar
consideration of his Fourth Amendment claims on habeas review. Second, he
contends that he raised a Fifth Amendment-based claim under Miranda v.
Arizona ,
384 U.S. 436 (1966) that was not barred by Stone and should have been
considered by the district court.
1. Fourth Amendment claims
Mr. Romero raises numerous Fourth Amendment claims relating to his
arrest and the search of his pickup truck that resulted in the discovery and seizure
of a large quantity of methamphetamine. The district court concluded that these
claims were barred from federal habeas review .
Mr. Romero correctly notes that Stone only bars Fourth Amendment claims
on state habeas where the state courts have provided “an opportunity for full and
fair litigation” of the claim. Stone , 428 U.S. at 494. He contends that he was not
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provided such an opportunity, because the state court trial judge’s comments
indicate that he failed to review the last few minutes of the videotape of
Mr. Romero’s arrest.
The trial judge made his comments about his review of the videotape at the
beginning of Mr. Romero’s trial. Counsel indicated he had a copy of the
videotape and would present it later in the trial if he felt the omission was
important. He never did. Under the circumstances, Mr. Romero fails to show that
he did not have a full and fair opportunity to litigate his Fourth Amendment
claims before the state trial court.
Mr. Romero also raised his Fourth Amendment issues on appeal. He does
not argue that he was unable to present the videotape or his argument that it had
not been fully reviewed to the Oklahoma Court of Criminal Appeals (OCCA). In
fact, the videotape was made part of the appellate record before the OCCA, which
considered and rejected his Fourth Amendment claims in an adequate written
decision. Under the circumstances, he fails to demonstrate that he was denied a
full and fair opportunity to litigate his Fourth Amendment claims in the state trial
and appellate courts. See Cannon v. Gibson , 259 F.3d 1253, 1262 (10th Cir.
2001) (enforcing Stone bar where defendant was offered opportunity to
supplement direct appeal record with materials allegedly omitted at district court
suppression hearing), cert. denied ,
122 S. Ct. 1966 (2002).
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2. Miranda challenge
Mr. Romero also complains that the district court reached an erroneous
conclusion concerning his Miranda challenge. He first disagrees with the district
court’s conclusion that he did not raise a Miranda challenge in the state courts. 1
Although his counsel waived a Miranda challenge at trial, see Trial Tr. at 4,
Mr. Romero argued on direct appeal to the OCCA that he should have been given
a Miranda warning before consent to search was requested. R., doc. 2,
attachment 1 at 10-11. The OCCA did not procedurally bar this argument. We
conclude that the argument was presented in state court and is not barred by state
procedural bar or for failure to exhaust. 2
We next consider whether Stone bars the assertion of Mr. Romero’s
Miranda argument. As a general rule, Stone does not apply to Fifth Amendment
Miranda -based challenges. See Withrow v. Williams , 507 U.S. 680, 683 (1993).
Here, however, the Miranda argument is raised as part of Mr. Romero’s Fourth
1
The district court’s specific statement was that Mr. Romero did not make a
Fifth Amendment-based Miranda challenge in the state courts. As will be seen,
this statement is technically correct, because Mr. Romero’s Miranda challenge is
in reality a Fourth Amendment challenge.
2
The district court also stated the Miranda argument was waived because it
had not been raised in Mr. Romero’s federal habeas petition. Out of an
abundance of caution, we will read the pro se petition to raise a Miranda
argument. The petition states that Mr. Romero was denied “due process” when the
state failed to prove that his consent to search was voluntary. Also, Mr. Romero
submitted as an attachment to the petition a state brief containing the Miranda
argument.
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Amendment challenge. In essence, he argues that his consent to search was
involuntary because it was obtained in violation of Miranda . 3
Simply put, the real issue Mr. Romero raises here is voluntary consent to
search (a Fourth Amendment issue) rather than self-incrimination (a Fifth
Amendment issue). See United States v. Smith , 3 F.3d 1088, 1098 (7th Cir. 1993)
(“[C]onsent to search is not a self-incriminating statement and, therefore, a
request to search does not amount to interrogation.”). Therefore, although
denominated a Miranda claim, the claim is barred by Stone . Cf. Tukes v. Dugger ,
911 F.2d 508, 513 (11th Cir. 1990) (applying Stone to bar Sixth Amendment
claim of invocation of right to counsel, where real thrust of claim was consent to
search under Fourth Amendment).
3
On direct review from a federal conviction, defendants have sometimes
argued that they were not read their Miranda rights prior to executing a consent to
search. In such cases, we have treated the Miranda issue as one factor in
determining whether the consent given was voluntary. See, e.g., United States v.
Dozal , 173 F.3d 787, 796 (10th Cir. 1999). On federal habeas review of a state
conviction, however, Stone bars such Miranda -based challenges, which are really
nothing more than Fourth Amendment claims in disguise.
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3. Conclusion
Mr. Romero has failed to show his entitlement to a COA. We therefore
DENY COA and DISMISS his appeal.
Entered for the Court
Robert H. Henry
Circuit Judge
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