United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2003
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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No. 02-40056
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROHN MARTIN ISHMAEL,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Before EMILIO M. GARZA and DENNIS, Circuit Judges, and HEAD*, District Judge.
EMILIO M. GARZA, Circuit Judge:
Federal prisoner Rohn Martin Ishmael appeals the district court’s denial of his 28 U.S.C.
§ 2255 petition for habeas relief. The district court granted a certificate of appealability on whether
law enforcement officers violated Ishmael’s Fourth Amendment rights by employing, without a
warrant, thermal imaging devices to detect heat emanating from a hydroponic laboratory located in
*
District Judge of the Southern District of Texas, sitting by designation.
a commercial building on Ishmael’s property.
Ishmael originally raised his Fourth Amendment challenge in a pre-trial motion to suppress.
Following our rejection of this claim on interlocutory appeal in United States v. Ishmael, 48 F.3d 850
(5th Cir. 1995), Ishmael entered a plea of guilty but “reserve[d] the right” in the plea agreement to
bring a collateral challenge in the event the use of thermal imaging technology was subsequently
declared unconstitutional. The instant petition is based on the Supreme Court’s decision in Kyllo v.
United States, 533 U.S. 27, 40 (2001), which held that the warrantless use of thermal imaging
technology to measure heat emanating from a home constituted a presumptively unreasonable search.
We do not reach the merits of Ishmael’s § 2255 petition because we hold that he had a full
and fair opportunity to litigate his Fourth Amendment claim in pre-trial proceedings and on direct
appeal. Accordingly, collateral review of that claim is barred by Stone v. Powell, 428 U.S. 465
(1976). See United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993) (“[I]t is clear that the
[Supreme] Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they
are limited in § 2254 proceedings))i.e., to be addressed only if a defendant has not had a full and fair
opportunity to raise the claims at trial and on direct appeal.”); Tisnado v. United States, 547 F.2d
452, 456 (9th Cir. 1976) (same). Although we express no view regarding the effect of Kyllo on our
previous disposition of Ishmael’s Fourth Amendment claim, a change in the law does not, by itself,
render prior proceedings any less “full and fair” for purposes of Stone. See Gilmore v. Marks, 799
F.2d 51, 57 (3d Cir. 1986) (“The Courts of Appeals . . . have consistently held that an erroneous
determination of a habeas petitioner’s Fourth Amendment claim does not overcome the Stone v.
Powell bar.”).
Ishmael’s Fourth Amendment claim is also barred by Teague v. Lane, 489 U.S. 288 (1989),
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because the new constitutional rule of criminal procedure established in Kyllo does not apply
retroactively to Ishmael’s conviction, which was final at the time Kyllo was decided. Neither of the
exceptions to Teague’s non-retroactivity rule applies here. Id. at 311-14.
Contrary to Ishmael’s contention, nothing in his plea agreement prohibits the Government
from opposing his habeas petition based on Stone or Teague. Moreover, although the Government
failed to raise the procedural bars of Stone and Teague in the district court, we are not precluded
from applying those bars on appeal. See Davis v. Blackburn, 803 F.2d 1371, 1372-73 (5th Cir. 1986)
(“Where the record clearly shows that a petitioner had a full and fair hearing in state court, we hold
that a federal court i s not foreclosed from sua sponte applying the principle of Stone.”); see also
Jackson v. Johnson, 217 F.3d 360, 361 (5th Cir. 2000) (“[A]bsent compelling reasons to the
contrary, a federal court should apply Teague even when it has been implicitly waived by the State.”).
For the foregoing reasons, the district court’s denial of Ishmael’s § 2255 petition is
AFFIRMED.
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