Petition for Writ of Certiorari — Kevin Scott Varner, Petitioner v. John Christiansen, Warden

I 0

7

No.

0 5 3~

IN THE

ORIGINAL

SUPREME COURT OF THE UNITED STATES

NOV 292018

Supreme Court, U.S.

FLED/&)

CE OF THE CLERK

F_l

FEViNJ 5crT V/NER -PETITIONER

(Your Name)

vs.

jOht\) CJ15TL,4f'J5E.1\J

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE iitu i TED 5 ThTES COURT OF R PPEAL5 FOR ThE 5111! cwi

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Kn &0+f Vo rn e-,r 673 7)

(Your Name)

a o J I b b0 rj '5f(

(Address)

5iLLoLis1 MI HS6O

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

in 1976, te rinj3 State,

, Sunreme Court prohl.Mtod feri

courts from reviswinq state prisoners' rourt

n3nt

exclustonary rule claims if the state pr&sontsr ws "provjr!e6 an,

opoortunity for

uil and fair 1.1tigatton o a Tourt'i Aenit

claim" In 3tat9 court. Stone V.

owl1, 423

45 f1976.

The net.ttioner wish the Court to review the o1o&n

uetions:

What constitutes "an opcortun&tv for fuJ -.ind fstr

iitIation of a Fourth Amendment cltm" In state curt7

Doe3

qtone V. T' wel 1 appiv v'n to case tt. 3n not se!z

to utilize t11C exclusionary rule ane. in which gtlt or tnnocenc.

is

pre-3icatel on whetter or not a Pourth mendent vtotthn

occurre?

LIST OF PARTIES

W

AII parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

I ',

-

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

JURISDICTION................................................................................................................... a

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENTOF THE CASE ............................................................................................ 4-6

REASONS FOR GRANTING THE WRIT..........................................................................7-'

CONCLUSION....................................................................................................................

INDEX TO APPENDICES

APPENDIX AZ Uni-e 5fs C0r

o& aog h

APPENDIX B

O.

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o-cnCir1

3fcfe. D+ric+ Court

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Jrit o I-ctU&3 orpc43

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APPENDIX C. LJnt+o St+e D13kid Court

Ocr1ond Qi-d&r

Dc-n mn3 PA Toner S Mo l 'l on-(ZrAPPENDIX D (Jni+&d 5hfe £0urf o('flpp6/5 0de

APPENDIX E

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APPENDIX F Unif&-j 5~ole-5 Di'dCo ur4 order D&&3 RM1iorer

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TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

304 (5th mr..

P,a lentine V. uartrman, 324

rdiy v. Nagle# 212 F. 3cl 559 (11th Cir. 2000...,............7

B ro wn v. Ferghui 3 , 539

T'

pp. 2d 795 (.D.

-u

-

ch. 2009........q

Cape11n V. lUley, 975 F. 2e3 67 (9th CtZ•

oiemn v. tiny, 579 F'. 23 1258 (4th Cir.

,.xnbi.eV. Okiahona,, 583 F. 2d 1161 (10th C&r. 1979 .... ........7,e

Gilmore v. Marks, 7,9.9 P. 36 51 (3rd Cir.

Good v. Berqhut, 729 F. 30 5535

t1rnay.Uorrteon, 477.S.

th Cir.

5

Miney v. ,r1ona 437'U.S. 335

Tli ra+-13ia v

L, .394 F. 3,3 984 (7th Cr.

, (th Cir.

Moreno v . Dretkla,, 450 F. 3d. 153

Rose v6 Mtchei1., 443 U.S.. 545

Sa nna v. D ioaolo, 25F. 31 I (t C1r.

2001,.,,... .... ,.,.

Singh v. 111111o r , 104 Fed. Apnx. 770 (2nd Cir, 2Q04............8

8irtporlg$ v. Caideron, 35 F. 3d. I38 94k.'h Cir.

Stone v6 PweI1, 42R U..

Tarry v. Ohio, 392 U.S. I

Wiiiett v. Locthrt, 37 r. 3d. 1.2.65 t9tii Cir.

OTHER

Un ited- Stiates Corns t itution 31J1 of Ri1it.

dyent IV, .55

8,

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

['/For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

C to

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[1 is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

II] is unpublished.

The opinion of the

appears at Appendix

court

-

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

IF

to

JURISDICTION

For cases from federal courts:

The de on which the United States Court of Appeals decided my case

was ireO ) ioI

[ ] No petition for rehearing was timely filed in my case.

A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: Au Llt 3I ?-018

, and a copy of the

3

order denying rehearing appears at Appendix P

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on _____________________ (date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

Application No.

(date) on

(date) in

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The MU of Rig-btq

In force Dec. 15, 17

Mr1 Wr 'tv.

Protection from unr eason able

The right of

piopLs t, h

houses, papers, an tffec, a1i

and

eA-r&)

cure in tier n rir,

rnbi,

eizur, sball not lis violt1, and no

rrn

Nit upon probalils cau-se, 3unT)or*-e,by Ot

ction, and particularly d93cr1bing t119

141- hg persons or thing. to

to b

f fir-

rch,

STATEMENT OF THE CASE

During a Thr.ry frt&t for weanons, a noitce oftcr felt a

on the etittoner'e person anl h'3 no i'ea Wliat th buthe was.

officer iecirer to further explore the bulge in order to

Ti'.'?

ertne.

if it wa-s, contr.n. In orer to farther exoTore the bu1'e, the

officer pulled the petitioner's htrt w anl oents out,

saw

Crown Royal bag tierl to the pntittoner' boxer un A erwqIr. TI the

state of Michic n, the petitioner has the rtcht to reetat an

act of a oolice officer.

wcu l

The petitioner attemte' to prevent the

officer from further exploring the bulge, anl attp~m. otel to

owevar, the petitioner was t etetelv a reNened and arreste6 for

resisting anrl obstructin7 a ooltc o1ftcer.

14 grams of nowrer cocaine anA 5 grams o

T

he offtcer - hn found

crack cocaine in the Crown

Royal bag. The petitioner was further charqe with n ession o

cocaine With intent to deliver.

In the state trial, aoellate, an

2prOe court, the petittoner

argued, in relevant part, that he haA the rt to re1st tha police

officer and that the cocaine evidence must he uon.re•ed because t7'e

officer's Terry frisk for waoons wee ohysically too tntrusve an

went heyonri what was

cesry to efeInormtno tf be wa are. AI

three l evels of the state court faila3 to render a

'ton in

of the petitioner's claim that the offtcer' weanons frisk was

physically too intrusive anI went beyon9 what was necessary to

determine if be was ar

HG

I

review oo lli, qcl&r, 4raUin5,

Vie petittonr then 'ouit

in relevant part, that his claim, was not barrel on hae

because the state court's fail.t,re to rener

his clat 3enied hth a "full

revtew

ect. ton ln l&qht o

fair" onnortuntv to ltttte

claim that the officer's weapons frisk was

yi.caliy too titve

an3 went beyond what was necemsa ry to det rtne if he wis armed in

the state court. Petitioner further argued kht even if the

exciustonery rule portion of hts clt was in fact barred, irahea

review of his claim that he hal the right to rist the

of the poliCe officer was not barrel

.awful.

cause tt did not rely on the

exclusIonary rule an1 c.,led into qetion the ut't or innoconce

of the netitloner in rear1e to the r isti.nc anc5 ob ructina

police

officer charge.

The district court held that the state court's fa lure to ru 1 e

on all aspects of the

etitionor's exclnstn ry rule cath

ejuate to pstltioner not havinc7a ?ult and fsir oportun

his 'ourth rnnlrrient

nt 4 state court.

hli that no federal case s'iyt that

The.

not

to 14,tt9ate

tr&ct court eso

Fourth nendmnnt c71 7-0 ,m hecoies

cognizahle on habeas review if the &aUene to the res cr sarch

provides an affirrntIve lsfens4

federal case limit

170 the chared offense, nd that no

onev._Powell only to

ose cases in Yhlch a

habeas rietitioner is seeklnci the exclusion of cv 3nnn based on n

allegelly illegal search arvl seizure.

The federal court of appeals decine to 1.sue a

of app lability, holinc that

ause the state trial And apellate

courts denied the netittoner's otton to ilinpreqi evtlencc and rejtd

'll, he petitioner's arguwnt that the officer 1acrcd reasonable suspicIon

5.

I

I.

to cn1ut ,pat-down for wea pons ,

the

aonah1e Jur is t wou1

itnict colir"I"s conciutrt "hat th.1

cLUim Are ba rrel

y Itone in6 tts

not-

F',urth

In et4ritiq to npn

the 1ugrnent.

ertto rr1. In the Untte8 tet

The petittorter ow

Court asking thiA Court to resolve., th

qrmnt

courts ai to 'ht cort ii

y f

tttg3tton o

Fourh

-rnrrnent c1t

th tte

the Court to 3ettlifederjj.

ano lies even to ca

th'n ot

rule ani in w1ich guUt or

'ourth 7m

rit violat tori

enc

- Fu'.I

&s

on

t

.

¶ fr

unt,and asj-J113

nof 1ithr

nw1i

to utt1tz th

1ory

Oi q)thr or not

&

REASONS FOR GRANTING THE PETITION

In 176, the Unite states ¶ureme Court prohiltitted

from reviewing state rtsonrs' Pourth Amendment exc

courts

oary rule

claims If the state prisoner waq provided "an opnortuni.tv for full

and fair l.itigation of a Fourth Amendment eltm' in state court.

tQne v. Dowell., 42 "U.S. 46's (17).

Since tbt tl'ThS, th

Court has not set forth a test, standard, or any gutdanco to the lowor

courts that would assist them in determining whether a stete prtson2r

was "provided an opportunity for full and fair litigation of a Fourth

•kmendment claim" In state court. This, in suite of Mr. Justice

Marshall's warning forty years ago that "tThe

tone llolding ts not

eased the burden on the lower federal courts as much as the

majority might have hoped, since those courts ,ave had to ru1

over what this Court meant by -'an 000rtunity for full and fair

litigation of a Pourth kmenclmant, claim!.'" Mmccv V. 7rIona, 137

tT..

335, 404, n. 2 (197). P ecause of this vacuum in Supremo Court

jurisprudence, the circuits are currently, In conflict.

For examole, some circuits 7nol1 that an avf6nntlary hnaring Is

required in order to constitute "n onoortunity for full. and fair

litigation of a Fourth Amenriment claim" in state court. 3cc, e..,

Gamble v. Oklahoma, 593

'.

2d 111, 115 (lflth Cir, 1n7; ra' 1 cy

v. Nagle, 212 F. 31 59, 565

11th Cir. 2(0).

owever, in other

circuits, an evidenttary hearing is not reuired. see, e.g.,

od

v. T3erghuis, 729 F. 3d 63, 3-40 (51-h Ctr.

Some circuits hold that the state court must apply the proper

constitutional case law to the case in order 'or state review to he

TZ

e.g., (tIrnor

Meeme-1 "fuli. n,_1 atr."

799 F. 23 51,

v.

57 (ri Cir. 19; Kiranrlay. tethac'i, 394 F. 16 9 4 , 991 '7+

15 1

rible

V.

10M It

!3R3

.

conclusions regirling a ¶'ourth

1973 1 .

W3 11ci, 115 71 (1nti

Other circutts, however, !iol'l tvt tb

'r.

rroctn;s 04' a

ct'

nrent claim ti si.m

.n1v

svant.

See,, e.., alenttre V. Quarterman, 321 'e3 A nn x. 314, 37 (5th Nt.

204); 1 1ripons V. Calderon, 3

.

3 130, 1321(It'l l

%

some circuits o1.9 that statc )ri ners are dntec1 "en

opportunity for full an fair litigation of a 'ourth

nnt c1,"

in state court, if they can slow an irretrievable bre&own In the

orocess provie by the state court. See, e.g,, linniv. rli.naolnp

25 F. 3-1 1, 9 fist air. 2901); Sinhv.tller, 194

772 (

cit. 2004); Dolernan v, Muncy, 579

.

71 1 258, 12,55 fth Nt,

197; Willett v. t2&thart, 37 r. 3i 12, 123

ape11an v.

iley, 975 P. 2

770,

11tr, 1 994;

+

7, 70 (th Cit. 12'. i-lowevr, oer

circuits hold that the mere existence of a oroc

throug' which a

state prisoner may raise a Pourth Amendmant claim in

te. court in

of itself amounts to "an ooporturdty for full anc3 fair ltat&on

of a Fourth

flretke, 40 TV

'.

enment claim" in state court.

.

31

2ee,

15, 17 (th Cit. 100; Good v

e.g., AIorinn v.

erghut, 729

31 635, 539 ( 6 th tr. 2013).

tn the sixth Circuit, "an opportunity for full nnd fair

ttation

of a Fourth Amenftent claim" in state court exists even if an

evidentiary hearing is not hell, the state court applies the

orrect

constitutional case law to the case, and even tr the state prisoner

can show an irretrievable hreakown in the orocess nrovi5ed by the

state court.

nool V. aerghuis, 729 F, 1A 636, (th (1r. 213;

t

frown V. erqhuts, 58 P. cuop. 2c 795, 812 t.D.

t3ecaue other circuttl dtqree with

of whet constttit

t•?i

5txti Circuit'sain

an opportunity for full nntj

Fourth Amendment cla im" in ttt.e court, thp

Jr .&ition of

t--3 Tt itn

Court shoulA arnt certiorari in or1er to rlv tht

greeient

among the tower courts.

rthr!ore, lthouth the UnIted States 5Urere Court eVer' thae.

a Fourti Amendment claim that does not attenot to utIlize the

exclusionary rule becom es cognizable on babaz3s review, e.g., 2tom'e

v, Powell, 42

545,

60 (1979);

465, 48-493 (197);

oe v. Mi 4 cieU,

43 U.S.

nelrnin v. Morrison, 477 U.'• 35, 375-377

986,

this guestion Is still. unsettle beca use the Court bas not areS

this issue bend-on.

Thus, certorrt should also be grned to ettie

the federt ieti.on of wether stone V. noWPIT

rr1

to

that o not seek to utilize the excl,usionry rule a.,O in

or innocence Is predica on whether or not a Fourth Arnen6mant

violatIon occurred.

9.

es

Inilt

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

&-ro=

rrY?x

+QL))TL

Date:

OVer

IOc