Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Ronald L. Madsen appeals from a judgment dismissing his petition for a writ of habeas corpus. For the reasons stated below, we affirm the judgment of the district court.

Petitioner was arrested on September 11, 1977 and charged with the first degree murder of his wife, Robyn. Robyn had died on January 23, 1977, after being shot by her husband during an outing in the desert. Appellant insisted that the shooting was an accident. However, Madsen's codefendant, Jay Charnell, testified (under a grant of immunity) that the incident was a pre-arranged scheme to kill Robyn and collect the proceeds of a life insurance policy that Madsen had taken out on his wife. He testified as to the details of the scheme, whereby Madsen arranged to make it look like his wife was accidentally shot during target practice. In support of this theory, the prosecution introduced several notes written and signed by Charnell. One of the notes stated:

I Jay Charnell, plotted the death of Robyn Madsen with Ron Madsen for the weekend of 1-8-77. / s/ Jay Charnell.

Charnell testified that, before the murder took place, Madsen had persuaded him to write and sign the notes while Charnell was drunk. He also testified that Madsen subsequently used them to force Charnell to keep quiet. Indeed, Charnell admitted his role in the plot only after he was confronted by the police with the notes, which had been discovered in Madsen's home.

The notes were obtained as the result of a search warrant issued for Madsen's home. Before trial, Madsen moved to suppress the notes on the grounds that they were obtained in violation of the fourth amendment. Specifically, Madsen argued that the warrant was not supported by probable cause, and that the warrant failed to specify the place to be searched with sufficient particularity. The state argued against both claims. In particular, the state argued that there was probable cause, noting that the affidavit accompanying the application for the warrant stated that a friend of Madsen's (a Mr. Bennett) had reported to the police that (1) he heard Madsen's girlfriend tell Mrs. Bennett that she had seen the notes; (2) Mrs. Bennett told her husband several days later that she had seen the notes; and (3) Mr. Bennett himself then contacted the girlfriend, who showed him the notes, and Bennett then secured them in a different location in Madsen's house. After holding an evidentiary hearing on the matter, the trial judge denied the motion to suppress. Madsen was subsequently tried before a jury, convicted, and sentenced to death.

Madsen appealed his conviction to the Supreme Court of Arizona. One of the several points he raised on appeal was the argument that the search of his home violated the fourth amendment because the warrant did not describe the place to be searched with sufficient particularity. Madsen did not raise the argument that the warrant was not supported by probable cause. The Supreme Court of Arizona affirmed the conviction, but reduced Madsen's sentence to life imprisonment. State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980). The United States Supreme Court denied certiorari. 449 U.S. 873 (1980).

Madsen then filed a habeas corpus petition in federal court. He also applied for state post-conviction relief under Ariz.R.Crim.P. 32.1. His habeas petition was dismissed for failure to exhaust state remedies. After Madsen was denied post-conviction relief by the state courts, he filed a new habeas corpus petition in federal court on May 14, 1987. The petition raised several claims: (1) The search of Madsen's home violated the fourth amendment, both because of a lack of sufficient particularity and because of a lack of probable cause; (2) The conviction was obtained by the use of perjured testimony;¹  (3) Madsen's appellate counsel was ineffective in that he failed to raise the issue of lack of probable cause for the search warrant. Madsen also alleged that his trial counsel was ineffective and that he should have received appointed counsel during post-conviction proceedings.

On November 5, 1987, a Magistrate recommended denying the petition for habeas corpus. On November 20, Madsen filed his objections to the Magistrate's report. The district court, however, adopted the report, and judgment was entered denying the petition on April 13, 1988. On April 27, 1988, Madsen filed a motion to reconsider with the district court, but the motion was denied on May 4, 1988. Madsen filed a notice of appeal to this court on May 20, 1988. The appeal is timely.² 

Arizona provided Madsen an opportunity for full and fair litigation of his fourth amendment claims. His fourth amendment claims were thoroughly examined by the trial court during a hearing on Madsen's motion to suppress. Indeed, his claim that the warrant did not specify the place to be searched with sufficient particularity was subsequently appealed to the Supreme Court of Arizona, which rejected the claim on the merits. Although the Supreme Court did not address the merits of Madsen's claim that the warrant was not supported by probable cause, this was due to the fact that Madsen did not raise the issue on appeal. Under these circumstances, we conclude that Arizona provided Madsen "an opportunity for full and fair litigation" of his fourth amendment claims. Madsen therefore may not present these claims on a petition for federal habeas corpus. See Stone v. Powell, 428 U.S. 465, 494 (1976).

Madsen also raises two claims of ineffective assistance of counsel. First, Madsen claims that his appellate counsel was constitutionally ineffective for failing to raise the probable cause issue on direct appeal. Second, Madsen claims that his trial counsel was ineffective prior to and during the suppression hearing. The latter of these two claims was not presented below and therefore will not be addressed on appeal. See Powell v. Spaulding, 679 F.2d 163, 164 (9th Cir. 1982); Wacht v. Cardwell, 604 F.2d 1245, 1247 n. 3 (9th Cir. 1979).³ 

We reject Madsen's claim that his trial counsel was constitutionally ineffective in failing to raise the issue of probable cause in his state appeal.⁴  The district court concluded that the probable cause argument was insubstantial and that presentation of the issue would have detracted from the other issues raised on appeal. We agree with the district court's conclusion that, in light of all of the circumstances, counsel's decision not to raise the issue of probable cause was not "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). Madsen has not demonstrated that his counsel's handling of the appeal "was unreasonable under prevailing professional norms" or that it "was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

The judgment of the district court is AFFIRMED.