Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1990)

MEMORANDUM^** 

Terry Allen Lake, an Arizona state prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The United States District Court for the District of Arizona denied Lake's petition on May 29, 1990.

PROCEDURAL AND FACTUAL BACKGROUND

Lake was charged in December, 1986, with possession of a narcotic drug and inducing a minor to traffic in or use narcotic drugs. Prior to trial, the trial court conducted an evidentiary hearing on Lake's motion to suppress, based on an alleged violation of the Fourth Amendment proscription against unreasonable stops, searches and seizures. After a full hearing, the trial court denied Lake's motion to suppress.

Based upon state allegations of prior convictions and a guilty plea to possession of narcotic drugs, Lake was sentenced to an aggravated term of twelve years imprisonment on September 8, 1987. Lake appealed to the Arizona Court of Appeals from his conviction and sentence. On appeal, Lake claimed that the trial court abused its discretion in denying his motion to suppress based upon his Fourth Amendment claims. The Arizona Court of Appeals affirmed Lake's conviction and sentence. The Arizona Supreme Court denied review.

STANDARD OF REVIEW

This court reviews de novo the federal district court's decision on a petition for writ of habeas corpus. U.S. v. Popoola, 881 F.2d 811 (9th Cir. 1989).

DISCUSSION

A state prisoner must present all claims in state court before a habeas corpus petition will be considered by the federal court. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). Exhaustion requires that a petitioner's claims be fairly presented to the highest state court to provide that court with an opportunity to rule on the merits of the petitioner's federal claims. McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986). We agree with the district court that Lake has exhausted his state remedies.

Relief pursuant to a writ of habeas corpus is not available, however, in the absence of a federal constitutional violation. Mitchell v. Goldsmith, 878 F.2d 319 (9th Cir. 1989). Put simply, Lake has no federal constitutional claim.

In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court determined that if a state prisoner has been afforded an opportunity for full and fair consideration of his Fourth Amendment claims, he may not invoke such questions on federal habeas review. The court weighed the utility of the exclusionary rule against the cost of extending collateral review of Fourth Amendment claims. It found in fact that " [a]s the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point its continued application is a public nuisance." Id. at 493 N. 34 (quoting Amsterdam, Search Seizure and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 389 (1964)).

Lake was provided an opportunity for full and fair litigation of his Fourth Amendment claim in state court. The trial court considered his claim at the evidentiary hearing on his motion to suppress and the Arizona Court of Appeals considered his claim on direct appeal. The district court's denial of Lake's petition for writ of habeas corpus is AFFIRMED.