Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Eddie Ray Rios, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. In his petition, Rios contends the police had no probable cause to seize a television that was used as evidence in his criminal trial. We affirm.

Under Stone v. Powell, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. 465, 494 (1976) (footnote omitted). Whether a defendant actually litigated his fourth amendment claim is irrelevant: the pertinent inquiry is whether he had the opportunity to do so. Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). Under California law, a defendant can move to suppress evidence on the basis that it was obtained in violation of the fourth amendment. Cal.Penal Code Sec. 1538.5; Gordon, 895 F.2d at 613.

Here, Rios's motion to suppress the evidence was denied. Given that he had an opportunity for a "full and fair litigation" of his fourth amendment claim, his assertion that the state court wrongly refused to grant his suppression motion is not enough to overcome the bar of Stone v. Powell.¹ 

AFFIRMED.