Brandon Bales v. Clarence Dupnik

FILED NOT FOR PUBLICATION FEB 12 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRANDON EUGENE BALES, No. 14-16067

Petitioner - Appellant, D.C. No. 4:12-cv-00483-BPV

v. MEMORANDUM* CLARENCE W. DUPNIK; ATTORNEY GENERAL OF THE STATE OF ARIZONA; CHARLES L. RYAN,

Respondents - Appellees.

Appeal from the United States District Court for the District of Arizona Bernardo P. Velasco, Magistrate Judge, Presiding

Submitted February 10, 2016** San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

Brandon Eugene Bales appeals the denial of federal habeas relief after he

challenged his Arizona state conviction for driving under the influence. The

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court held that Bales’s habeas appeal was barred by Stone v. Powell, 428

U.S. 465 (1976). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Bales contends that his Fourth Amendment rights were violated when his

blood was drawn pursuant to Arizona’s “implied consent” statute, Ariz. Rev. Stat.

Ann. § 28–1321 (2015). However, Stone v. Powell directs that “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.” Stone, 428 U.S. at 494 (footnote call number omitted).1

Bales appears to argue that he did not receive a “full and fair” trial because the

state court misconstrued the facts and misapplied clearly established federal law.

But these arguments, like all of the arguments in Bales’s opening brief, go to

whether his Fourth Amendment claim was wrongly decided, not whether the

hearing itself was fair. See id. at 482. In this case, Bales had a full evidentiary

hearing on his suppression motion, as well as an appeal to the superior court and an

opportunity for further appellate review. Thus, the district court properly ruled that

Bales had the opportunity for a full and fair hearing on his Fourth Amendment

1 We recently confirmed that Stone survived enactment of the Antiterrorism & Effective Death Penalty Act (AEDPA). Newman v. Wengler, 790 F.3d 876, 879–81 (9th Cir. 2015). claim.

Finally, in his reply Bales argues for a new exception to the Stone doctrine

that would allow habeas review of Fourth Amendment issues that affect a large

number of people or claims. He provides no persuasive reason to support this

alleged exception, however, and we decline to create such a rule. Stone is clear:

We cannot reconsider the merits of Bales’s Fourth Amendment claim, so federal

habeas relief is unavailable.

AFFIRMED.