Petition for Writ of Certiorari — Pedro Pablo Fuentes, Petitioner v. Steven Harpe, Director, Oklahoma Department of Corrections

Supreme Court briefNov 25, 2024

Ask Donna

What actually matters in this document.

Text

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED

United States Court of Appeals

Tenth Circuit

September 30,2024

Christopher M. Wolpert

Clerk of Court

PEDRO PABLO FUENTES,

Petitioner - Appellant,

No. 24-6094

(D.C. No. 5:23-CV-00355-J)

(W.D. Okla.)

STEVEN HARPE,

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.

Pedro Fuentes, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to challenge the district court’s order denying his 28 U.S.C. § 2254

petition. For the reasons explained below, we deny a COA and dismiss the matter.

In 2016, law enforcement investigated Fuentes for methamphetamine trafficking

and secured a GPS-tracking warrant for his car. The GPS showed the car driving to

Phoenix for a suspected drug pick up. When the car returned to Oklahoma, a lawenforcement officer pulled Fuentes over for speeding and tailgating. The officer thought

* This order is not binding precedent except under the doctrines of law of the case,

judicata,

and collateral estoppel. But it may be cited for its persuasive value. See Fed.

res

R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

1 We liberally construe Fuentes’s pro se filings, “but we will not act as his

advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

I i/

Fuentes seemed nervous, and, while the officer conducted a warrant check and wrote the

ticket, he summoned a K-9 officer to the scene. When the officer returned to give Fuentes

the ticket, he questioned Fuentes for a few minutes about drugs and ultimately told

Fuentes he was going to have the K-9 run around the vehicle. Fuentes asked for the

ticket, pointed at it, and claimed he was free to leave. But the officer placed Fuentes in

the patrol car while officers searched his vehicle. The search uncovered nearly ten pounds

of methamphetamine.

In the ensuing state criminal proceedings, Fuentes challenged the legality of the

search and seizure in a motion to suppress, arguing that the officers violated his Fourth

Amendment rights because they lacked reasonable suspicion to extend the traffic stop

beyond the time needed to issue a ticket. Following an evidentiary hearing, the trial court

denied Fuentes’s motion. Fuentes later sought reconsideration in light of new evidence,

but after conducting a second evidentiary hearing, the trial court denied reconsideration.

Following a bench trial, the trial court found Fuentes guilty of aggravated drug trafficking

and imposed a 3 5-year prison sentence.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed, finding no error in

the trial court’s denial of the motion to suppress. Fuentes v. State, 517 P.3d 971, 976

(Okla. Crim. App. 2021). The state district court then denied Fuentes’s pro se application

for postconviction relief, including his claim that trial and appellate counsel were

ineffective in arguing the suppression issue, and the OCCA dismissed his attempted

appeal as untimely.

Fuentes then sought federal habeas relief. His operative § 2254 petition asserted

one

ground for relief: that the trial court erred in denying his motion to suppress. The

magistrate judge concluded that the Supreme Court’s decision in Stone v. Powell, 428

U.S. 465 (1976), barred Fuentes’s claim. Stone held that as long as the state provided

[the petitioner with] an opportunity for full and fair litigation of a Fourth Amendment

claim,

'• a federal court may not grant habeas relief on such a claim. 428 U.S. at 494. After

explaining that Stone barred Fuentes’s claim because he was able to pursue the claim

both before his trial and on appeal, the magistrate judge recommended that the district

court deny Fuentes’s § 2254 petition.

The district court overruled Fuentes’s objections and adopted the magistrate

judge’s report and recommendation in full, concluding that Fuentes “was provided an

opportunity for full and fair litigation of his Fourth Amendment claims prior to trial and

appeal and, therefore, is not entitled to federal habeas corpus relief.” R. vol. 1, 83-84.

The district court thus denied Fuentes’s petition and denied him a COA.

Fuentes now seeks to appeal the district court’s decision. To do so, he must first

secure a COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 33536 (2003) (describing COA as “jurisdictional prerequisite”). We will grant Fuentes a

COA if “reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The district court concluded that Stone bafi-ed Fuentes’s Fourth Amendment claim

because he had an opportunity to fully and fairly litigate that claim in the state courts.

the phrase “full and fair litigation” means (1) “the procedural opportunity to raise or

otherwise present a Fourth Amendment claim,” (2) a “full and fair evidentiary hearing,”

and (3) “recognition and at least colorable application of the correct Fourth Amendment

constitutional standards.” Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978);

see also United States v. Lee Vang Lor, 706 F.3d 1252, 1257-58 (10th Cir. 2013)

(explaining standards for Fourth Amendment claims brought in habeas proceedings). And

despite continuing to press the merits of his Fourth Amendment claims in his COA

application before this court, Fuentes does not dispute that the Oklahoma courts gave him

a full and fair opportunity to litigate those claims. Nor could he. He received several

procedural opportunities to present his Fourth Amendment claims, including before trial,

on direct appeal, and in a postconviction proceeding. He also received multiple

evidentiary hearings, and he does not challenge the fullness or fairness of those hearings.

And both the trial court and the OCCA recognized and colorably applied the governing

Fourth Amendment standards. See Fuentes, 517 P.3d at 975-76.

Because reasonable jurists could not find the district court’s conclusion debatable

or wrong, we deny a COA, dismiss this matter, and deny Fuentes’s pending motion for

stay as moot. Further, we conclude that Fuentes has not demonstrated the existence of a

reasoned, nonfrivolous argument on appeal, so we deny his motion to proceed in forma

pauperis. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court

Nancy L. Moritz

Circuit Judge

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PEDRO PABLO FUENTES,

Petitioner,

STEVEN HARPE,

Respondent.

)

No. CIV-23-355-J

REPORT AND RECOMMENDATION

Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under

28 U.S.C. § 2254. (ECF No. 1). United States District Judge Bernard M. Jones has referred

the matter to the undersigned magistrate judge for initial proceedings consistent with 28

U.S.C. § 636(b)(l)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254

Cases, the undersigned has examined the Petition and taken judicial notice of various

state court records.1 After review, the undersigned recommends that the Court DISMISS

the Petition in its entirety because it includes exhausted and unexhausted claims.

However, the undersigned also recommends that if Mr. Fuentes files an Amended Petition

including only the exhausted claim, the Court grant the amendment and allow the case

to proceed on that claim.

1 See United States v. Purs/ey, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion

"to take judicial notice of publicly-filed records in [this] court and certain other courts concerning

matters that bear directly upon the disposition of the case at hand").

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 2 of 7

SCREENING REQUIREMENT

The Court is required to review habeas petitions promptly and to "summarily

dismiss [a] petition without ordering a responsive pleading," Mayle v.. Felix, 545 U.S. 644,

656 (2005), ”[i]f it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district court." See R. 4, R. Governing § 2254

Cases in U.S. Dist. Ct.

II.

PROCEDURAL BACKGROUND

On January 28, 2020, in Canadian County District Court Case No. CF-2016-560,

Mr. Fuentes was convicted of aggravated trafficking in illegal drugs. See ECF No. 1:1;

State Court Docket Sheet, State of Oklahoma v. Mason, Case No, CF-2016-560 (Canadian

Co. Dist. Ct. Jan. 28, 2020). Petitioner appealed the conviction, raising one proposition of

error—that the traffic stop which led to the seizure of drugs in Petitioner's vehicle was

unreasonably extended for reasons unrelated to the traffic stop, in violation of the Fourth

Amendment, and the trial court erred in failing to grant Mr. Fuentes' Motion to Suppress

based on this theory. See Brief of Appellant, Fuentes v. State of Oklahoma, Case No. F2020-115 (Okla. Ct. Crim. App. Aug. 13, 2020). On July 15, 2021, the Oklahoma Court of

Criminal Appeals (OCCA) affirmed Mr. Fuentes'conviction. Fuentes v. State of Oklahoma,

Case No. F-2020-115 (Okla. Ct. Crim. App. July 15, 2021).

On June 6, 2022, Petitioner filed an Application for Post-Conviction Relief in the

Canadian County District Court, alleging ineffective assistance of trial and appellate

counsel and requesting a Franks hearing. 5eeECF No. 3-l:3-7. On January 12, 2023, the

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 3 of 7

district court denied the application and Mr. Fuentes filed an appeal in the OCCA. See id.',

State Court Docket Sheet, Fuentes v. State of Oklahoma, Case No. PC-2023-218 (Okla.

Ct. Crim. App. Mar. 13, 2023). Ultimately, the OCCA declined jurisdiction and dismissed

Petitioner's appeal as untimely. See Order Declining Jurisdiction and Dismissing Appeal,

Fuentes v. State of Oklahoma, Case No. PC-2023-218 (Mar. 21, 2023). On April 28, 2023,

Mr. Fuentes filed a habeas Petition in this Court asserting four grounds for relief:

1. The trial court erred in denying the motion to suppress evidence which was

obtained following an illegal search of Petitioner's vehicle because he did

not consent to the search;

2. The trial court erred in denying the motion to suppress because the law

enforcement officer who searched Petitioner's vehicle illegally extended the

traffic stop for reasons unrelated to the stop in an effort to wait on a K-9

drug dog;

3. The OCCA erred in affirming his conviction on direct appeal; and

4. Error by the OCCA in declining jurisdiction over Petitioner's post-conviction

appeal.

(ECF No. 1:5-10).

III.

EXHAUSTION

"A threshold question that must be addressed in every habeas case is that of

exhaustion." Harris v. Champion, 15 F.3d 1538,1554 (10th Cir. 1994). "A state prisoner

generally must exhaust available state-court remedies before a federal court can consider

a habeas corpus petition." Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006). This

doctrine began as a judicially created prudential principle based on federal-state comity

before its 1948 codification in the habeas statutes. Rose v. Lundy, 455 U.S. 509, 515-16,

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 4 of 7

(1982); see 28 U.S.C. § 2254(b)(1). "Although the exhaustion rule is not jurisdictional, it

creates a 'strong presumption in favor of requiring the prisoner to pursue his available

state remedies.'" Bear v. Boone, 173 F.3d 782, 784 (10th Cir. 1999) (quoting Granberry

v. Greer, 481 U.S. 129, 131 (1987)). "The exhaustion requirement is designed to avoid

the unseemly result of a federal court upsetting a state court conviction without first

according the state courts an opportunity to correct a constitutional violation." Davila v.

Davis, — U.S.

, 137 S. Ct. 2058, 2064 (2017) (internal quotation marks omitted)

(quoting Rose, 455 U.S. at 518).

"To exhaust a claim, a state prisoner must pursue it through 'one complete round

of the State's established appellate review process,' giving the state courts a 'full and fair

opportunity' to correct alleged constitutional errors." Se/sor v. Workman, 644 F.3d 984,

1026 (10th Cir. 2011) (quoting O'Sullivan v. Boerckel, 526 U.S. 838,845 (1999)). "A claim

has been exhausted when it has been 'fairly presented' to the state court." Bland, 459.

F.3d at 1011 (quoting Picard v. Connor, 404 U.S. 270, 275, (1971)); see generally Grant

v. Royal, 886 F.3d 874, 890-92 (10th Cir. 2018) (analyzing what amounts to "fair

presentation"). "[T]he crucial inquiry is whether the 'substance' of the petitioner's claim

has been presented to the state courts in a manner sufficient to put the courts on notice

of the federal constitutional claim." Prendergast v. Clements, 699 F.3d 1182,1184 (10th

Cir. 2012) (quoting Picard, 404 U.S. at 278).

Case 5:23-cv-00355-J

IV.

Document 9

Filed 06/02/23

Page 5 of 7

ANALYSIS

As stated, Mr. Fuentes has presented four grounds for habeas relief. See supra.

Of these grounds, only Ground Two has been exhausted. Compare ECF No. 1:6-7 & 3:48 with Brief of Appellant, Fuentes v. State of Oklahoma, Case No, F-2020-115 (Aug. 13,

2020). As a result, Mr. Fuentes has presented what is referred to as a "mixed" petition.

See Piiier v. Ford 542 U.S. 225, 225 (U.S. 2004) (noting that "mixed" federal

habeas petitions [are] those containing both unexhausted and exhausted claims.").

A district court confronted with a mixed petition may either "(1) dismiss the entire

petition without prejudice in order to permit exhaustion of state remedies, or (2) deny

the entire petition on the merits." Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir.

2002). The court may also permit the petitioner to delete the unexhausted grounds for

relief from his petition and proceed only on the exhausted grounds for relief, Rose v.

Lundy, 455 U.S. 509, 510 (1982), or, if the equities favor such an approach, it may stay.

the federal habeas petition and hold it in abeyance while the petitioner returns to state

court to exhaust the previously unexhausted claims. Rhines v. Weber, 544 U.S. 269, 279

(2005).

Under Rhines, however, the court will not stay a mixed petition pending total

exhaustion unless the applicant shows: good cause for his failure to exhaust his federal

claims in the state court; that his unexhausted claims are not "plainly meritless;" and that

he has not engaged in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at

277-78. Here, Petitioner has not requested this Court to stay this action, and having

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 6 of 7

considered the factors set forth in Rhines, the undersigned does not recommend staying

the case.

Thus, Mr. Fuentes is left with two options. First, he could move to file an Amended

Petition raising only the specific claim that has been exhausted—Ground Two. To avoid

dismissal, Petitioner must state his claim with precision exactly as it was considered by

the OCCA on direct appeal. Petitioner is reminded that he may be barred from raising any

omitted claims in a second or successive petition. Alternatively, this Court could dismiss

Petitioner's premature habeas petition without prejudice so he can attempt to exhaust

state remedies on the remaining claims. Petitioner is cautioned, however, that if he

chooses this option, he will have a limited period of time on which to file a new habeas

petition based on the statute of limitations period as set forth in 28 U.S.C. § 2244(d).

RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

Based on the foregoing findings, it is recommended that the Petition for Writ of

Habeas Corpus be dismissed without prejudice as a mixed petition. If, however, Petitioner

moves to file an Amended Petition raising only the exhausted claim as presented in

Ground Two, it is recommended that such amendment be granted. Additionally, Petitioner

is instructed that if he files an Amended Petition, he may also file a brief in support thereof

as any Amended Petition would supersede and replace his current Petition and Brief and

Support (ECF Nos. 1 8i 3).

Plaintiff is hereby advised of his right to object to this Report and

Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the

Case 5:23-cv-00355-J

Document 9

Filed 06/02/23

Page 7 of 7

District Court by June 19,2023. See28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2).

Failure to make timely objection to this Report and Recommendation waives the right to

appellate review of both factual and legal questions contained herein. Casanova v.

UHbarri, 595 F.3d 1120, 1123 (10th Cir. 2010).

VI.

STATUS OF THE REFERRAL

This Report and Recommendation disposes of all issues currently referred to the

undersigned magistrate judge in the captioned matter.

ENTERED on June 2, 2023.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

Case 5:23-cv-00355-J

Document 30

Filed 04/29/24

Page 1 of 2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

PEDRO PABLO FUENTES,

Petitioner,

STEVEN HARPE,

Respondent.

)

Case No. CIV-23-355-J

ORDER

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254,

seeking habeas relief from a state court conviction. The matter was referred to United States

Magistrate Judge Shon T. Erwin for initial proceedings consistent with 28 U.S.C. § 636. [Doc.

No. 5]. On February 6, 2024, Judge Erwin issued a Report and Recommendation recommending

that the Petition for Writ of Habeas Corpus be denied. [Doc. No. 23]. Petitioner has filed an

objection to the Report and Recommendation which triggers de novo review. [Doc. No. 29]. In this habeas action, Petitioner alleges that the state trial court erred when it denied his

motion to suppress evidence gained from his vehicle following a traffic stop which he asserts was

unlawfully extended for reasons unrelated to the traffic stop. Following his conviction, Petitioner

appealed the denial of his motion to suppress evidence, and the Oklahoma Court of Criminal

Appeals affirmed his conviction. See Report and Recommendation [Doc. No. 23]. “[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 v. Powell, 428 U.S. 465,

494 (1976). Having reviewed the filings in this case, the Court concludes that Petitioner was

provided an opportunity for full and fair litigation of his Fourth Amendment claims prior to trial

Case 5:23-cv-00355-J

Document 30

Filed 04/29/24

Page 2 of 2

and on appeal and, therefore, is not entitled to federal habeas corpus relief. See Report and

Recommendation [Doc. No. 23].

Accordingly, the Court ADOPTS the Report and Recommendation [Doc. No. 23] and

DENIES Petitioner’s Petition for Writ of Habeas Corpus [Doc. No. 15]. A certificate, of

appealability is DENIED, as the Court concludes Petitioner has not made “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED this 29th day of April, 2024.

BERNARD M. JONES

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

PEDRO PABLO FUENTES,

PETITIONER,

)

Case No. CIV-23-355-J

STEVEN HARPE,

RESPONDENT,

REPLY BRIEF OF PETITIONER

Pedro Pablo Fuentes

Pro-Se

Lawton Correctional Rehabilitation Facility

8607 S.E. Flower Mound Rd.

Lawton, OK.73501

9^ hc< /

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

PEDRO PABLO FUENTES,

PETITIONER,

)

Case No. CIV-23-355-J

STEVEN HARPE,

RESPONDENT,

RESPONSE IN OPPOSITION TO RESPONDENT’S RESPONSE

Here comes Pedro Pablo Fuentes, Pro-se in response to the Respondent’s response for the

Petitioner, Petition for Writ ofHabeas Corpus.

1. The Respondent, States that, relief is barred by Stone v. Powell) that federal habeas corpus

review is foreclosed under Stone v. Powell Stone, 428 U. S. at 482.

[428 US 482]

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,

the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial

What this, States is the Constitution does not require that a state prisoner be granted federal

habeas corpus, it does not state, that a state prisoner does not get relief. There a lot of things the

Constitution does not require.

2. The Respondent, refers to Under the Antiterrorism and Effective Death Penalty Act, hereinafter

referred to as the AEDPA , a petition for writ of habeas corpus will not be granted with respect to any

claim that was adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the Unites States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

3. The Respondent, refers to The Collective Knowledge Doctrine State v. Iven, 2014 OK CR 8, 10,

335 P.3d 264,268:

Meaning of Collective Knowledge Doctrine

The Collective Knowledge Doctrine essentrilly proved that when one officer know sufficient

information to justify an arrest of a target if he for request that another officer is attributed to the

second officer for purpose of determining whether there was probable cause for a arrest. United State

v. Massenburg 654, F.3.d 480 (4th Cir 2011)

4. Petitioner Fuentes. Petitioner will be referred to as the State or the prosecution. Numbers in

parentheses refer to page citations in the Original Record (O.R), the transcripts of the September 4,

2019, Preliminary Hearing (P.H.); the December 19, 2019, hearing on the Motion to Suppress (M. Tr.

I); and transcript of the motion hearing held on January 6, 2020 (M. Tr. II); and the transcript of the

non- jury trial held on January 28, 2020 (Tr.). Copies of exhibits introduced by the State at trial are

provided under separate cover and will be cited as (S. Exh. #).

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act, hereinafter referred to as the AEDPA,

a petition for writ of habeas corpus will not be granted with respect to any claim that was adjudicated

on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the Unites States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

Sections 2254 (d) and (e) (1):

In Miller- El v. Cockkrell, 537 U.S 322 (2003, seven members of the Court joined by Justice

Scalia in a separate concurring opinion and over a solitary dissent by Justice Thomas rejected the 5 th

Circuit attempt to consolidate two separate provisions of AEDPA (sections 2254(d)(2 and (e) (10 to

require habeas corpus petitioners to prove that the state court decision was objectively unreasonable by

clear and convincing evidence Id. At 341. This was too demanding a standard, the Court declared, on

more than one level. It was incorrect for the Court of Appeals, when looking at the merits, to merge the

independent requirements of §§ 2254(d) and (e) (1). AEDPA does not require petitioner to prove that a

decision is objectively unreasonable by clear and convincing evidence. The clear and convincing

evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court

determinations of factual issues, [and does not apply to ultimate state court} decisions. Subsection (d)

(2) contains the unreasonable requirement and applies to the granting of habeas relief. Id. At 341 42.

The Court also took the opportunity in Miller- El to underscore the federal courts obligation on federal

habeas corpus review to scrutinize state court judgments carefully and grant relief where appropriate.

Addressing federal habeas corpus review of factual determinations by state court, where AEDPA

Sections 2254(d)(2) and (e)(1) call for certain forms of deference to state determinations (see infra §

20. 2c), the Court instructed that deference does not imply. Abandonment of abdication of judicial

review. Deference does not by definition preclude relief. A federal court can disagree with a state court

credibility determination and when guided by AEDPA, conclude the decision was unreasonable or that

the factual premises was incorrect by clear convincing evidence. Id. At 340

In Brumfield v. Cain, 135 S. Ct. 2269 (2015), the Court held under section 2254(d)(2) that a

state court decision denying a death-row inmate an opportunity to prove he was intellectually disabled

and thus exempt from capital punishment under Atkins v. Virginia,536 U.S. 304 (2002), was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding. Id. At 2273. The Court found that the state coin! had unreasonably views

Brumfield IA test score 75 as belying the claim that Brumfield was intellectually disabled when in fact

this evidence was entirely consistent with intellectual disability once the margin of error for IQ tests

was considered, and there was no evidence of any higher IQ test score that could render the state court

determination reasonable. Id. At 2277 78. The state court also unreasonably found that the record failed

to raise any question as to Brumfield impairment in adaptive skill. Id. At 2279. As the Court explained,

the evidence in the state court record provided substantial grounds to question Brumfiekd adaptive

functioning Id. At 2280. Although other evidence in the record before the state court may have cut

against Brumfierld claim of intellectual disability needed only to raise a reasonable doubt as to his

intellectual capacity to be entitled to an evidentiary hearing on his Atkins claim, and none of the

countervailing evidence could be said to foreclose all reasonable doubt. Id. At 2280,81. Accordingly,

the Court held, Brumfield was entitled to have his Atkins claim considered on the merits in federal

court. Id. At 22733. The Court observed once again, as it had in Miller-El v. Cockrell, 537 U.S. at 340,

that even in the context of federal habeas, deference does not imply abandonment or abdication of

judicial reviews, and does nowt by definition preclude relief. Id. 2277.

§ 32.4. Rules for applying section 2254(d)(2)

AEDPA amended section 2254(d) provides that a state prisoner habeas corpus application shall not be

granted with respect to any claim that was adjudicated on the merit in State court proceedings unless

the adjudication of the claim

(1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, asdetermined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 1

STATEMENT OF THE FACTS

As Petitioner Fuentes's vehicle approached Morgan Road in Canadian County, Oklahoma City

Police Officer John Ricketts observed it speeding, and changing lanes without signaling, (Tr.43; S. Exh.

#2). At approximately 9:00 P.M. , Officer Ricketts initiated a traffic stop of Petitioner Fuentes's,

vehicle.

Officer Ricketts, made contact with Petitioner Fuentes, asked him for his license, and informed

him of the traffic violations for which he was being stopped. (Tr. 44) Officer Ricketts thought

Petitioner Fuentes, was nervous and agitated during the traffic stop. (Tr.45) Officer Ricketts then

directed Petitioner Fuentes, to exit his vehicle. (Tr.46) Petitioner Fuentes, was the only occupant of the

vehicle. (Tr.58

As he and Petitioner Fuentes, stood outside the vehicle, Officer Ricketts, issued a traffic

citation. (Tr.47) As Officer Ricketts, was writing the ticket, he paused to ask that a k-9 unit be

dispatched to the location of the Traffic stop. (Tr.47) Oklahoma County Sheriffs Deputy Cody

McDaniel arrived on the scene with his drug dog approximately two minutes later. (Tr> 49, 80-83; See

O.R. 67; S. Exh # 2) The dog alerted on the vehicle. (Tr.50) After Petitioner Fuentes was place in patrol

after he denied permission to search the vehicle, restrains him from his freedom to walk away. (Tr 50)

The officers found a duffal bag containing multiple bundles of methamphetamine. (Tr. 50) The total

weight of methamphetamine found, as agreed to in the stipulation, was approximately 4,441.51 grams.

Ricketts' testified the decision to call the drug dog and search the vehicle were based on

information he learned prior to the traffic stop. Petitioner Fuentes, vehicle was being tracked by law

enforcement, based on information received by a confidential informant. (Tr. 10-13) That information

had bee provided to a court in order to get approval for a GPS tracker on Petitioner Fuentes's, vehicle.

(Tr. 13) Law enforcement, including Officer Ricketts, were aware of the informant's claims regarding

Petitioner Fuentes's, drug activity, and were aware when he was traveling from the west into Oklahoma

City. (Tr 16-170 Ricketts' testimony established that officers were on the lookout for Petitioner Fuentes,

vehicle, looking for a reason to make a traffic stop and then search the search the vehicle. (Tr. 47)

Officer Ricketts told Petitioner Fuentes, that a drug dog would be run around his vehicle because he

was acting nervous. (S.Exh. #2) The evidence in the case shows that the decision to search his vehicle

had already been made.

ARGUMENT AND AUTHORITY

In Respondent’s, response argument which Petitioner will refer to number one and number two. The

Respondent’s stated that Petitioner raised this claim on direct appeal and the OCCA denied it on the

merits (Exhibit 1 at 4-12; Exhibit 3 at 6-13). Because Petitioner had the opportunity to fully and fairly

litigate this issue in state court, and took full advantage of that opportunity, his claim is not cognizable

in this Federal habeas Corpus Proceeding. Refering to Stone v. Powell, 428 U.S. 481 482,494 (1976)

and Thornton v. Goodrich, NO. 17-1369, 808 Fed. A- x. 651, 654-55 (10th Cir. Apr. 6,2020).

The Respondent, States that, relief is barred by Stone v. Powell) that federal habeas corpus

review is foreclosed under Stone v. Powell. Stone, 428 U. S. at 482.

[428 US 482]

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,

the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial

What this States is the Constitution does not require that a state prisoner be grantedfederal

habeas corpus, it does not state, that a state prisoner does not get relief. There a lot of things the

Constitution does not require.

Petitioner bears the burden of rebutting the state court's factual findings “by clear and

convincing evidence.” Under the Antiterrorism and Effective Death Penalty Act, hereinafter referred to

as the AEDPA , a petition for writ of habeas corpus will not be granted with respect to any claim that

was adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the Unites States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.

Petitioner, has met burden by using Rodriguez v. United State, 575 U.S. 448 (2015) and stating

the District Court error in denying his motion to suppress evidence, and for the OCCA denying

Petitioner's direct appeal. Their decision was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the Unites States; Rodriguez

v. United State, 575 U.S. 448 (2015). Every case the State or Respondent, has referred to is contrary

to Rodriguez v. United State, 575 U.S. 448 (2015).

Now the Respondent, is referring to Thornton v. Goodrich, NO. 17-1369, 808 Fed. A—x. 651,

654-55 (10th cir. Apr. 6, 2020)

Thornton presented his Fourth Amendment claim in state court by filing a motion to suppress

evidence which included a claim that the length of his detention was unreasonable. At the evidentiary

hearing on the motion, defense counsel cross-examined the stopping officer concerning the stop of

Thornton's vehicle and specifically complained{2020 U.S. App. LEXIS 4} about the 45-minute

delay before the dog sniff. Moreover, during his closing argument, counsel argued that the actual video

recording of the stop established Thornton to have been detained for 45 minutes and sought to

downplay the officer's reasons for detaining Thornton after he had cleared the vehicle's license plates.

In denying the motion to suppress, the state trial judge applied the appropriate constitutional standards

governing traffic stops. Although the trial judge reviewed the corrected video, not the video of the full

stop, the corrected video showed that the stop was initiated at 20:42 and the dog sniff occurred at 21:26

(about 45 minutes later). Moreover, while the length of the detention is certainly an important factor in

the reasonableness equation, other factors are also relevant, and the trial court considered those factors

in making its decision. The record also reflected Thornton filed a motion to reconsider the denial of the

motion to suppress. The trial judge denied the motion because Thornton had not provided any new

evidence warranting reconsideration. Although Thornton could have argued at that time that the

corrected video was incomplete, he did not.

Finally,{2020 U.S. App. LEXIS 5} Thornton filed a direct appeal and specifically directed the appellate

court to evidence in the record showing 45 minutes elapsed between the vehicle stop and dog sniff. In

its decision, the appellate court misstated that duration as 20 minutes.4 Nevertheless, that temporal

mistake did not undermine the fact that Thornton was provided a full and fair opportunity to litigate his

claim in state court. The district judge concluded:

On this case the Officer had not written the Citation before the dog-sniff accord. In case of

Petitioner, the Officer had written the citation and gave it to the Petitioner before placing the Petitioner

in the back seat of the patrol vehicle (Tr.50). Plus Thornton fail to demonstrate a case contradicting the

state ruling, but Thornton’s, case did get over reversed.

[645 Fed. Appx. 666] ORDER AND JUDGMENT

Petitioner Richard Thornton appeals the district court's denial of a 2254 habeas petition in which he

challenged his conviction for two drug-related crimes.

In his federal habeas petition, Petitioner raised a single claim for relief, which was based on the state

court' rejection of his motion to suppress evidence obtained as the result of a traffic stop and search of

hes vehicle. The federal district court rejected this claim pursuant to Stone v. Powell, 428 U.S. 465, 96

S. Ct. 3337,49 L. Ed. 2d. 1067 (19760, which holds that “where the State has provided an opportunity

for full and fair litigation for a Fourth Amendment claim, a state prisoner may nor be granted federal

habeas corpus {2016 U.S. App. LEXIS 2} relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.' Id. At 494 (footnote omitted).Base on this

rule, the district court handled his Fourth Amendment claim in such away that he cannot be considered

to have received a 'full and fair' opportunity to litigate his claim.

A judge of this court concluded that Petitioner's allegation were sufficient to raise a reasonable

debatable question as to whether Petitioner received a full and fair opportunity to litigate his Fourth

Amendment claim. The judge accordingly granted Petitioner's request for a certificate of appealability

and ordered Respondents to {645 Fed. Appx. 667} file a response brief addressing this question.

Respondents have now filed a response brief, in which they suggest that the case should be remanded

for the district court to address the Stone issue after reviewing the state court record, which was not

considered by the district court before and is not included in the record before us on appeal. We agree

{2016 U.S. App. LEXIS 3} that this would be the most appropriate course of action. We will

accordingly remand this case for the district court to consider this issue with the benefit of the state

court record and full briefing from both parties.

Petitioner has filed several motion with this court, including a motion for an evidentiary hearing and for

the appointment of counsel to represent him on appeal, a motion for an extension for time to file a

reply brief a motion to replace lost files, and a motion to expand the record. Because we are remanding

this case for further consideration by the district court, none of the requested relief is necessary to our

resolution of this appeal. We will therefore deny all of these motions. As necessary, appropriate motions

may be filed in district court proceedings on remand.

The district court's dismissal of Petitioner's 2254 habeas petition is REVERSED and REMANDED for

further consideration. WE GRANT Petitioner's motion to proceed in forma pauperis on appeal. All

other pending motions are DENIED.

The Respondent, refers to The Collective Knowledge Doctrine State v. Iven, 2014 OK CR 8,

10, 335 P.3d 264,268:

Meaning of Collective Knowledge Doctrine

The Collective Knowledge Doctrine essentrilly proved that when one officer know sufficient

information to justify an arrest ofa target if he for request that another officer is attributed to the

second officer for purpose ofdetermining whether there was probable cause for a arrest. United State

v. Massenburg 654, F.3.d 480 (4th Cir 2011)

In the case of State v. Iven, 2014 OK, CR 8, 10, 335 P.3d 264, 268, Deputy Craig Smith of the

Blaine County Sheriff Department was dispatched to a call of domestic dispute. Deputy Smith arrived

at area and located the alleged victim, B.H. hiding in a trash trailer near the airport. The victim visibly

shaken and crying, B.H. Described being involved in an altercation with Iven. Deputy Smith observed

recent physical injuries to B.H. Including blood on her nose and under her eyes welling to the left side

of her mouth, and bruises and abrasions on her arms and legs. Deputy Smith made a request to Deputy

Spiva based on information known to him. Further investigation after the arrest led to additional

chargers.

In the case of Petitioner Fuentes, there was no domestic call. In the of Iven's, B.H. bare the

marks on her face that Iven, might allegedly might of beat her up. In the case of Applicant's Fuentes,

Petitioner, was just suspected of drug trafficking, no prove of any drug trafficking on Petitioner, like the

face of B.H. . In in the case of Iven, Deputy Craig Smith, made a requested for a arrest on suspected

Iven, for allegedly beating B.H.. In the case of Applicant's Fuentes, Detective Chad Cook, requested

that an Oklahoma City Officer, stop the vehicle once it was in Oklahoma Country if any traffic

violations were observed. (Tr. 17, 32-33, 62,15-16) Detective Chad Cook never requested an arrest of

Petitioner Fuentes, like Deputy Craig Smith, requested on Iven. In the case of Petitioner Fuentes, the

arrest came after the Petitioner rights were violated.

Iven, case is irrelevant to Petitioner Fuentes, case and really can not be and should not be relate

to Petitioner Fuentes, case because the case against Petitioner Fuentes, was a Aggravated Trafficking

and not a domestic like Iven, case and plus no one seen Petitioner Fuentes, buying or selling drugs, but

this other case, is more relevant to Applicant Fuentes, case, “as one will see”.

Guandong v. State, 2022 WY 83

In the case of Mr. Guandong, Guandong, the defendant was stopped by one Officer, because,

earlier in the day, other Officer, stopped another vehicle and had collected evidence that suggested that

the defendant was trafficking drug in his vehicle (See Guandong 3-12). Trooper Kirlin, pull over Mr.

Guandong's, vehicle because the information he had obtain from another Officer. When Trooper Kirlin,

stop Guandong, he explain to Mr. Guandong the reason he pull him over then Trooper Kirlin, had

another officer prepare the written warning so that he could run the drug dog around the car (Mr.

Guandong did not challenged the fact of the drug dog sniff or any delays caused by the drug dog sniff.)

The Wyoming supreme Court affirmed the denial of the motion to suppress on the basis that the

“Collective Knowledge” doctrine gave Trooper Kirlin, sufficient ground to make the initial stop. Chief

Justice Fox, writing for the unamimous court, concluded as follows.

“On consideration [the] fact in light of his training and experience Trooper Kirlin, concluded

that the driver of the Corolla was transporting drugs and, based on the totality of the circumstances, we

will defer to his ability to distinguish between, innocent and suspicious actions” Guandong, 2 (quoting

Feeney v. State, 2009 WY 67,13,208 P3.d 50,54 (WYO 2009)

In the case of Guandong, Trooper Kinlin, had another officer prepare the written warning, so

that he could run the drug dog around the vehicle of Mr. Guandong. In the case of Petitioner Fuentes,

Officer Rickett had written the citation and gave the citation to Petitioner, before he place Petitioner, in

the back seat of his patrol vehicle, and then had Officer McDaniel run his K-9 sniff around Petitioner’s,

vehicle. The Officer, choose to run the K-9 around Petitioner’s, vehicle after the issue of the citation,

and not when Officer McDaniel, got to the scene which is a violated of the Petitioner, “Fourth

Amendment Rights”. In the case of Guandong, Mr. Guandong, did not challenged the fact of the drug

dog sniff or of any delays caused by the drug dog sniff. In the case of Petitioner Fuentes, Petitioner, did

challenged the delayed caused by the K-9 sniff. His complaint, got him place in the back seat of the

patrol vehicle while the officers run the K-9 around, Petitioner’s, vehicle because he did not want the

K-9 to go around his vehicle.

Fact to the matter, the case against Mr. Guandong, is a true Collective Knowledge Doctrine.

Trooper Kinlin, had collective knowledge by another Officer, that Mr. Guandong, might be trafficking

illegal drugs and pull over Mr. Guandong, for traffic violations. Trooper Kinlin, decided to run the K-9

drug sniff around the suspected’s vehicle before issuing the citation. Plus ( Mr. Guandong did not

challenged the fact of the drug dog sniff or any delays caused by the drug dog sniff). Fact of the matter,

the case of Petitioner Fuentes, is similar to Mr. Guandong, case, but the deference is that Officer

Ricketts, and Officer McDaniel, choose to run the K-9 sniff around the vehicle after writing the citation

plus Officer Ricketts gave the citation to Petitioner Fuentes and place Petitioner Fuentes, in the back of

the patrol vehicle violating Petitioner constitution rights in according to

FOOTNOTES

1 The "seizure" at issue in Terry v Ohio, was the actual physical restraint imposed on the suspect. 392

US, at 19, 20 L Ed 2d 889, 88 S Ct 1868, 44 Ohio Ops 2d 3831. The Court assumed that the officer's

initial approach and questioning of the suspect did not amount to a "seizure." Id., at 19, n 16, 20 L Ed

2d 889, 88 S Ct 1868, 44 Ohio Ops 2d 3831. The Court acknowledged, however, that "seizures" may

occur irrespective of the imposition of actual physical restraint. The Court stated that "[i]t must be

recognized that whenever a police officer accosts an individual and restrains his freedom to walk away,

he has 'seized' that person." Id., at 16, 20 L Ed 2d 889, 88 S Ct 1868,44 Ohio Ops 2d 3831..

When the Officers Ricketts, and McDaniel, choose to physical restraint Petitioner Fuentes, they

violated Petitioner Fuentes, constitutional rights and four amendment rights to be able to walk away

after the citation was issue and given to Petitioner Fuentes.

CONCLUSION

The fact of matter is that the Respondent, has not demonstrate, a case that show the Officers had

the right to restrains Petitioner freedom to walk away, after the issue of citation even if the Petitioner

was under investigating. In according to Miller- El v. Cockkrell, 537 U.S 322 (2003) A federal court

can disagree with a state court credibility determination and when guided by AEDPA, conclude the

decision was unreasonable or that the factual premises was incorrect by clear convincing evidence. Id.

At 340. The fact is the State Court , and the O.C.C.A. error when denying Petitioner Motion to

Suppress Evidence and directed appeal. Petitioner is stating that his rights violated when he got seize

for the purpose to run a K-9 sniff around his vehicle that was unreasonable and unconstitutional under

the Fourth Amendment of the United States Constitution, under Article 11, and Article II § 7 and § 20

of the Oklahoma Constitution. Applicant ask this court to reverse his conviction and remand the matter

to the District Court of Canadian County with instructions to dismiss it.

Respectfully Submitted

/Pedro Pablo Fuentes, #414597

L.C.R.F., l-A-117

8607 S.E. Flower Mound Rd.

Lawton, OK. 73501

(580)351*2778

VERTIFICATION

I state under penalty under the laws of Oklahoma that the foregoing is true and correct. Title 12

O.S. .Supp. 2004, § 426. Executed by the Applicant at the Lawton Correctional Rehabilitation Facility,

8607 S.E. Flower Mound Rd. Lawton, OK. 73501, on the date of September 25,2023.

7^? S/n /fS

(Print Name of Applicant)

c / ,,

/y y^y-yy

(Applicant Signature)

CERTIFICATE OF SERVICE

This is to certify that on this 25h, day of September, 2023, a true and correct copy of the above

was

mailed

for

filing

Keeley

Miller,OBA #

18389

Assistant

Attorney General 313 N.E. 21st Oklahoma City, OK.73105

((Print Name of Applicant)

(Applicant Signature)

✓

<V N

1/28/2020

’&■

«i

At the time, it was a white Acura.

MR. MURREY:

Approach, Your Honor?

the COURT:

You may.

(By Mr. Murrey) I'm showing you now what I've marked

state's Exhibit Number 3.

describing?

Yes, sir.

And why were you conducting the stop on that vehicle?

For traffic violations.

speeding.

lane changes where they failed to signal.

What speed did you estimate he was driving at?

I believe that's in my report.

at 75 in a 65 mile an hour zone.

attention.

Yes, sir.

Was the signal used improperly or not used at all?

Not used at all.

Did you have other reason to have focused your

attention on this Acura?

Yes, sir.

And what was that?

We received information from officers in the Special

Projects Unit that they had a tracker on a vehicle that was

I had paced it.

is that the vehicle you're

Number 1, at the time, it was

And also observed a number of

I have him traveling

And you said there were lane changes that caught your

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

And we

coming in that would be carrying a load of dope,

had the name of the defendant and also what he would be

driving.

Q-

access to or you had been informed of the, like, color,

make, model of the vehicle.

Yes.

The name of the driver.

Yes, sir.

what name were you given to look for?

Pedro Fuentes.

And you had actually accessed the tracker through

software on your iPad?

Yes.

Okay.

it was US Fleet Tracking.

Thank you.

e^^4^r^y^b^Tif^nves4;4^a-t-ed?--^—f

picked up a load of narcotics and was on his way back.

okay.

Yes, it did.

And how did you proceed with your enforcement?

I made contact with the driver, asked him for his

license, informed him of his traffic violation.

okay.

And also I had the tracker pulled up on my iPad.

So, if I understand you, you're saying you had

what were you informed \m^ZblZ£b.e_crji.miJra.l?,‘

That he had gone -- he had gone out of state and

Did the car actually come to a stop for you?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

©.

Mr. Fuentes?

was nervous.

even though the vehicle was air conditioned and the windows

were up, initially.

nervous and just constantly fidgeting and moving inside the

vehicle.

did you confirm the identity of the driver?

With his license.

Picture id?

Yes, sir.

And who did you find him to be?

Mr. Pedro Fuentes, the defendant.

The person who you know as Pedro Fuentes, do you see

him today?

Yes, sir.

Can you please tell the Judge where he's sitting and

what he's wearing?

white and orange jumpsuit.

And what were your initial observations of

All those characteristics that I described before.

He was agitated.

He was sweating profusely

Like I said, his behavior was quite

Before I get too far from your initial encounter, how

Sitting at the defendant's desk and he's wearing his

MR. MURREY:

I ask the record to reflect

identification.

THE COURT:

The record will so reflect.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

|P-f

enforcement right there at his car, or did you take any

actions to remove him from there?

it was conducted at the car.

And did you leave him there, or did you ask him to

step out of the car?

I actually had him step outside the vehicle.

was he compliant?

At first he hesitated and was very non-compliant.

tried to explain I had him step out because he was

fidgeting in the car.

rights.

another unit to come by my stop, it was at that point that

he was like, "Why you calling somebody else?"

ended up getting out of the vehicle voluntarily.

operate pursuant to the law; correct?

Yes, sir.

And, to your best understanding, are you authorized to

have motorists step out of the car on a traffic stop?

Yes, sir.

Were you trying to have him do anything else at that

point?

No, sir.

Do you sometimes have motorists step out of the car

(By Mr. Murrey) Did you conduct the traffic

He felt like I was violating his

Eventually, when I got on the radio to ask for

And then he

I know that you are not an attorney, but you do

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

during traffic stops?

Yes, sir, quite often.

Based on what you observed and interacted up to that

point, how did you proceed?

issue a citation.

made contact with one of our K9 units to come assist me

with the stop.

going to run the dog on the vehicle.

Explain "the dog."

It was a drug dog.

looks for narcotics inside vehicles.

And why was that your decision?

Because we already had all of the information that I

had mentioned.

identified.

that he was going to be carrying a load of methamphetamine.

look for?

Yes, sir.

And the driver matched the information you were given

to look for?

Yes, sir1.

And did the tracking software you were observing, did

that correspond with the arrival of that car in your area?

we end up having him stand outside that vehicle.

At that point, I got on the radio and

At that point, I knew — he was

we were

A certified K9 that specifically

The tracker on the vehicle.

He was

The vehicle that he was in:< And we believed

Did the car match the information you were given to

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

in*

Yes, sir.

Thank you.

You've described the symptoms of having ingested

methamphetamine.

observed about Mr. Fuentes.

Yes, sir.

Had you begun to form an opinion, at that time, about

whether he may be operating under the influence of

anything?

that I had with him too, just with all of his movements

inside the vehicle, I didn't -- a lot of times, guys that

are trafficking in narcotics have weapons inside the car.

so just distance him from any weapon that he possibly has

inside the vehicle, bring him to the backside of the

vehicle where I can handle him on my own.

him step out.

Yes, sir.

Okay.

under the influence of something?

Yes, sir.

If you had had to narrow down what it may be, at that

time, what would you have thought?

You've described some of the things you

Yes, sir, I believed he was.

Okay.

And the other problem

And, right now, you're describing why you had

So your testimony is, you believed he may be

Some kind of amphetamine.

'DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

' /

■./

someone to be under the influence of a narcotic out in

public?

Yes, it is.

Or driving a car?

Yes, sir.

Who did you contact to run the K9?

The K9 unit that I made contact with was Cody

McDaniel.

COMIT Unit.

And did he come to your location?

Yes, sir.

And did he deploy his dog?

Yes, he did.

Did he inform you of the results of that?

Yes.

And what did he tell you?

okay.

And is it a basis to detain and/or arrest

He worked for Oklahoma county but also on the

MS. DUNCAN:

approach for just a short moment?

Objection, Your Honor.

May we

THE COURT:

You may.

MS. DUNCAN:

Your Honor is aware of our motion to

suppress in this case.

record during this trial a continuing motion to suppress.

We argued that any evidence of drugs found in the car was

illegally obtained.

And I would like to put on the

And I would just like Your Honor to

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

note a continuing objection.

THE COURT:

did have a hearing on that,

objection.

ill

I will note that for the record,

MS. DUNCAN:

And I'll show your continuing

Thank you, ludge.

(By Mr. Murrey) What did then Deputy McDaniel tell

you?

He said that the dog alerted on the vehicle.

Have you worked with Deputy McDaniel before?

Yes, I have.

As a K9 handler?

With him being a K9 handler, yes, sir.

Based on that information, the dog had alerted, how

did you proceed?

vehicle, while we searched the vehicle, in the backseat of

my Tahoe.

a . wmrmmr&srnm£\sr i i

and searched the vehicle,

containing multiple bundles of methamphetamine.

We placed the defendant -- we had him sit inside the

Okay.

a©

■ijorwi-- We went ahead

immediately found a duffle bag

MR. MURREY:

Approach the witness, Your Honor?

THE COURT:

You may.

(By Mr. Murrey) I'm going to take you through a series

of pictures here, Sergeant.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

You have him step outside the vehicle but not

initially into your patrol car.

at the back of his car.

Yes, ma am.

Okay,

off of an exit.

it's on Morgan Road.

Okay.

is that right?

Yes.

Okay.

Yes, ma'am.

okay.

correct?

Yes, ma'am.

Is that because he has a drug dog with him?

Yes, ma'am.

Okay.

arrives?

believe.

before he arrives?

No, ma'am, not offhand.

Okay,

You have him go and stand

And this isn't actually on the highway, it's

And it's at this time that you call for backup;

After he's already out of his ear?

And you specifically call for McDaniel; is that

Cody McDaniel.

And about how long before Officer McDaniel

He arrived before I could complete the ticket, I

okay.

Do you have any idea about how long it is

when he does arrive, do you fill him in on

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

HPft

what's happening inside of your patrol car?

going to need to run the dog.

officer shows up, you and him are issuing a citation,

he's sitting with you while you're issuing the citation;

correct?

while I'm writing a citation.

there before I was able to actually finish the citation.

okay,

I believe so.

vehicle.

While you're writing the ticket?

No.

While you're writing the ticket, so it's ongoing.

Yes, ma'am.

Okay.

standing outside of his car.

I believe so, yes.

Okay.

car?

I do explain to him what was going on; that we're

And you note in your report that when this secondary

No.

I don't believe he was sitting in my car with me

What I stated was he got

so y'all are just standing outside the car.

when he showed up, I got out of my

I believe I hadn't completed it.

And Mr. Fuentes, at this point, is still

At what point do you put him into the patrol

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

Once we're going to run the dog.

If—

I explained to him

that we had reason to believe that there was narcotics in

the vehicle.

the dog, on the vehicle,

be better that he sat inside the vehicle, inside my scout

car,

run the drug dog; correct?

The drug dog is always with him.

Right, the drug dog is certainly with him.

doesn't immediately get the dog out of the car and run it

around Mr. Fuentes's car; correct?

No, ma'am.

Is it before you issue the citation that you're

checking Mr. Fuentes for warrants?

Honestly, I don't remember.

There aren't any active warrants; correct?

I believe not.

the cardoes the drug dog make the hit?

I don't recall.

The two of you or just one of you?

The two of us.

Okay.

I told him that we were going to run the K9,

And for his protection, it would

ve=3de,t,e,n,ti'on.

when Officer McDaniel shows up, he doesn't initially

it's in his vehicle.

But he

Okay. After a drug dog does make a hit --well, where

Okay. After the hit, you immediatelysearch

the car.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

r"-":

the dog, and then he'll assist me with the search.

he's under arrest.

backseat in that duffle bag, yes.

I went back to the scout car.

told he was under arrest for trafficking.

About how long does the search of the car take?

I honestly don't remember.

At least 10 minutes?

Yes, ma'am, 10 minutes.

And Mr. Fuentes is seated in your patrol car with the

doors locked at that point.

Yes, ma'am, under investigative detention.

Okay,

No, ma'am.

—during the search?

NO.

The backseat of the patrol car is secured in a way

that he can't get out; correct?

I probably initiated the search while he's putting up

Okay.

Once we located the bundles of methamphetamine in the

We informed him that —

He's placed in handcuffs and

It wouldn't be that long.

is he handcuffed at that point —

Yes, ma'am.

And, at that point, you inform Mr. Fuentes that

MS. DUNCAN:

Your Honor, may I have just a

THE COURT:

You certainly may.

moment?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

Uh-huh.

Okay.

course , wants to be done with you and move on; correct?

Yes, ma'am.

Okay.

drug dog.

You don't ask for his permission; correct?

No.

I had — no, I did not ask his permission.

Because you don't necessarily need his permission to

run the dog; right?

no,

So you've made the determination

you are having this K9 arrive at the scene and that you are

going to do a search of the car.

Yes, ma am.

Assuming that the drug dog hits.

Yes, ma'am.

And, then, after that moment, Mr. Fuentes, of

But you tell him no.

we're going to run the

I don't.

vAc-mluQIUMS

feiit lit)

at that point, that

:m: rs

Yes, ma am.

cr-le) r ctr. Tty

No, ma am.

okay.

Detective cook wasn't at that briefing that we spoke about

just one last question.

I want to clarify that

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

1/28/2020

(Oi

earlier; correct?

He had just given that information to

Castleberry, who gave it to —

To our supervisor, who forwarded it to us.

And, then,

4 | later, I made contact with Detective Cook.

Detective cook is the one that was investigating

6 I Mr. Fuentes for weeks?

He would be the case agent that placed the tracker on

his vehicle.

Right.

Yes.

So he had been -- he initially started this whole

case; correct?

Yes, ma’am.

Okay.

not have pulled over this white Acura; correct?

Yes, ma’am.

Okay.

Without him, it’s very possible that you would

And so, fair to say that after this briefing in

18 I the afternoon, you are looking specifically for this white

19 I Acura to pull it over?

Yes, ma’am.

Obviously.

Yes, ma’am,

we were watching the tracker, waiting for

23 Jit to show up.

Okay.

Yes, it is.

And it’s more or less Detective Cook's case.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.