[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14651 MAY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00320-CV-J-33-HTS
DAVID O’BERRY HEARN,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 6, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
David O’Berry Hearn, a Florida prisoner, appeals pro se the judgment
against his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Hearn argues
that the state court erred when it denied his motion to suppress because there were
false statements in the affidavit that provided probable cause for a warrant to
search his property. The district court ruled that the issue was barred from review
under Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052 (1976), and we
granted a certificate of appealability to address that ruling. We reverse and
remand.
I. BACKGROUND
The police requested a search warrant for Hearn’s property while
investigating an armed kidnapping in Nassau County, Florida. The victim of the
kidnapping identified Mark Land as one of her three assailants. When the police
apprehended Land, he identified Mark Wade and Darryl Smith as his cohorts.
While the police questioned Land in his home, Land received a telephone call that
he told the police was made by cohort Wade. The police traced the call to Hearn’s
home and drove to the residence to search for Wade.
According to the affidavit for the search warrant, the police believed that
Wade was armed and dangerous and surrounded Hearn’s home. As the police
approached the house, they observed through the opened doorway of a shed and
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behind the shed some paraphernalia used to manufacture methamphetamine.
Based on their observations, the police requested a warrant to search Hearn’s
home, “together with the yard and curtilage,” “any vehicles,” and “any person
reasonably believed to be engaged in or connected with [the] illegal activity,” for
“any instrumentalities possessed or used in connection” with the manufacture of
methamphetamine, and to seize “methamphetamine and anything known to be used
in the manufacture of methamphetamine[.]”
A Florida court issued a warrant to search Hearn’s property. The police
executed the search warrant and seized from the house, its curtilage, and vehicles
near the house evidence associated with the manufacture of methamphetamine,
including liquid methamphetamine, precursor materials and paraphernalia used to
“cook” methamphetamine, about 3,700 dollars in cash, surveillance equipment, 60
guns, and ammunition. Hearn was arrested and charged by information with
trafficking in methamphetamine, the sale or manufacture of a controlled substance,
possession of a controlled substance, possession of marijuana, and possession of
drug paraphernalia.
Hearn moved to suppress the evidence seized from his property on two
grounds. First, Hearn argued that “[t]he original intrusion upon [his] property by
law enforcement and upon which the information which led to the search warrant
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was based, was pretextual and, as such there was no probable cause for the search
or the issuance of the search warrant[.]” Second, Hearn argued that, even “[i]f the
officers [were] to be believed [about the] phone call[,]” they should have requested
a search warrant before they entered Hearn’s property. Hearn alleged that the
police had made “multiple unsuccessful attempts” to purchase drugs from him
through confidential informants and the officers misstated information that they
had acquired during their investigation of an armed kidnapping so they could enter
Hearn’s property. Hearn also asked the trial court for an evidentiary hearing as
required by Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), and to
“void[]” the search warrant because it was based on an affidavit that contained
false statements.
The trial court held a hearing on Hearn’s motion. The state and Hearn
presented evidence regarding the information relied on by the police to enter
Hearn’s property, the observations by the police of paraphernalia used to
manufacture methamphetamine, and the evidence seized after the police executed
the search warrant. Hearn introduced copies of telephone records from the date of
the search that he alleged established that no calls were made from his house to
Wade’s house during, or within a few hours of, the time that the officers
questioned Wade in his home. At the conclusion of the hearing, the trial court
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summarily “den[ied] [Hearn’s] motion to suppress as to the physical evidence.”
Hearn pleaded guilty to the sale and possession of a controlled substance,
possession of marijuana, and possession of drug paraphernalia. In exchange for
Hearn’s plea of guilty, the state nol prossed Hearn’s trafficking charge. The trial
court sentenced Hearn to imprisonment for ten years.
Hearn appealed the denial of his motion to suppress. Hearn argued that the
police entered his property without probable cause and could not obtain a search
warrant even though they observed drug paraphernalia in plain view. Hearn
alleged that “[e]ven assuming exigent circumstances” that the police were in search
of a “suspect armed felon[,]” the facts known to the police “were insufficient to
establish probable cause to believe that Wade would be at Hearn’s house.” As part
of his argument, Hearn alleged facts different from those stated in the affidavit and,
in a footnote, stated that “[t]he false statements in the affidavit should be excised.
Franks v. Delaware, 438 U.S. 154 (1978).” In the alternative, Hearn argued that,
even if the police were entitled to enter his property they lacked probable cause to
request a search warrant. The state appellate court affirmed Hearn’s conviction
without opinion.
Hearn also filed in a Florida court a motion for post-conviction relief. See
Fla. R. Crim. P. 3.850. Hearn argued that the trial court erred when it denied his
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motion to suppress because the affidavit contained “patently false statements” and
those statements “were not excluded from consideration at [the] hearing [on his
motion to dismiss].” The trial court denied Hearn’s motion on the ground that the
issue had been resolved in his direct appeal. The state appellate court affirmed
without opinion the denial of Hearn’s post-conviction motion.
Hearn filed a federal petition for a writ of habeas corpus and argued that the
trial court was misled by false testimony in the affidavit for the search warrant, and
the state responded that the federal court could not reach the merits of Hearn’s
argument for two reasons. First, the state argued that Hearn received a full and fair
opportunity to litigate his Franks argument in state court and the federal court was
barred under Stone from examining the issue in a habeas corpus proceeding.
Second, the state argued that Hearn failed to exhaust his Franks argument in state
court and he had not alleged cause and prejudice to excuse the procedural default.
The state explained that Hearn argued on direct appeal that the officers violated the
Fourth Amendment when they entered his property without probable cause and
that Hearn’s challenge to the affidavit and reference to Franks in a footnote did not
fairly present the constitutional issue to the state court. In the alternative, the state
argued that Hearn’s challenge to the search warrant lacked merit.
The district court ruled that Stone v. Powell barred review of Hearn’s
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petition. The district court ruled that Hearn was afforded a full and fair
opportunity to litigate the validity of the search of his property in state court. The
district court denied Hearn’s request for a certificate of appealability.
II. STANDARD OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus.
Clark v. Crosby, 335 F.3d 1303, 1307 (11th Cir. 2003).
III. DISCUSSION
“[W]here 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.” Stone, 428 U.S. at 494, 96 S. Ct. at 3052. We
have interpreted the phrase “opportunity for full and fair litigation” to “mean[] just
that: an opportunity.’” Lawhorn v. Allen, 519 F.3d 1272, 1287 (11th Cir. 2008)
(quoting Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). In Caver, we
have explained that “if state procedures afford the defendant in a criminal case the
opportunity to litigate whether evidence obtained in violation of the fourth
amendment should be excluded, and if that opportunity to litigate fourth
amendment issues is ‘full and fair[,]’ . . . then Stone v. Powell precludes federal
habeas corpus consideration of those issues whether or not the defendant avails
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himself of that opportunity.” 577 F.2d at 1193.
A state does not afford a defendant a full and fair opportunity to litigate the
validity of a search under the Fourth Amendment when the state courts fail to make
essential findings of fact. In Tukes v. Dugger, we addressed whether Stone
foreclosed review of the validity of a search when the defendant presented his
argument but the state courts failed to make findings of fact to resolve that
argument. 911 F.2d 508, 513–14 (11th Cir. 1990). We concluded that the state
courts had failed to afford the defendant a full and fair opportunity to litigate the
validity of the search when they did not make findings of fact about whether the
defendant had invoked his right to counsel or was in custody when he consented to
the search of his home. We stated, “The trial court’s failure to make explicit
findings on matters essential to the fourth amendment issue, combined with the
fact that the state appellate court issued only a summary affirmance, precludes a
conclusion in this case that the state provided the meaningful appellate review
necessary to erect a Stone v. Powell bar to our review of the claim.” Id. at 514.
In the light of Tukes, the district court erred when it concluded that Stone
foreclosed review of Hearn’s petition. Hearn argued at trial and on appeal that the
warrant to search his home was obtained by use of false statements in the
supporting affidavit. At the Franks hearing, Hearn introduced copies of telephone
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records that allegedly established that no call was made from his home when the
police questioned Wade in his house, which gave the police reason to enter Hearn’s
property in search of a suspect in the armed kidnapping. Neither the trial court nor
the appellate court made any findings of fact to reconcile the statements of the
police and the telephone records. Although we presume, as we did in Tukes, that
Hearn’s Fourth Amendment argument was “given . . . careful, judicious, and
studied attention[,]” the state courts nevertheless failed to make “explicit findings
on matters essential to” Hearn’s Fourth Amendment argument. 911 F.2d at 514.
The summary denial of Hearn’s motion to suppress, coupled with a summary
affirmance by the Florida appellate court, was “insufficient to deny [Hearn]
consideration of the merits of his constitutional claim on federal habeas corpus
review.” Id.
We do not address the other arguments of the parties about exhaustion and
the merits of Hearn’s petition because these issues are outside the scope of the
certificate of appealability. See Murray v. United States, 145 F.3d 1249, 1250
(11th Cir. 1998).
We REVERSE the judgment that denied Hearn’s petition and REMAND
for further proceedings.
REVERSED and REMANDED.
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