United States District Court, E.D. Wisconsin
DECISION AND ORDER DISMISSING PETITION
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
Lee Brown, who is incarcerated pursuant to the judgment of a
Wisconsin Circuit Court, filed a petition for a writ of
habeas corpus. The court screened Brown's petition in
accordance with Rule 4 of the Rules Governing Section 2254
Cases and ordered him to show cause why his petition should
not be dismissed. The court noted that he was arguing that
(1) the state court erred in denying his request for a
hearing under Franks v. Delaware, 438 U.S. 154
(1978); (2) the court of appeals erred by failing to consider
the distinction between “citizen informers as opposed
to traditional police informers”; (3) he made a
substantial preliminary showing to warrant a Franks
hearing; and (4) the search warrant affidavit was
insufficient. In a “Subsequent Supplemental Brief for
Habeas Corpus Petition, ” Brown has attempted to show
cause why his petition should not be dismissed. (ECF No. 10.)
claims all amount to a challenge that the search warrant
violated the Fourth Amendment. Evidence obtained in violation
of the Fourth Amendment is subject to the exclusionary rule.
“The exclusionary rule protects ‘the right to be
free from arbitrary intrusion by the police' by excluding
‘[e]vidence obtained by police officers in violation of
the Fourth Amendment … in the hope that the frequency
of future violations will decrease.” Haakenstad v.
Symdon, No. 16-cv-702-jdp, 2017 U.S. Dist. LEXIS 212933,
at *11 (W.D. Wis. Dec. 29, 2017) (quoting Stone v.
Powell, 428 U.S. 465, 483 (1976)). But the exclusionary
rule generally is not a basis for granting habeas relief
because the costs of applying it outweigh the benefits.
Haakenstad, 2017 U.S. Dist. LEXIS 212933, at *11-12
(quoting Stone, 428 U.S. at 490, 493-94).
“[T]he primary aim of the exclusionary rule is to deter
the police from violating the Fourth Amendment rather than to
remedy an injury to the individual.” Monroe v.
Davis, 712 F.3d 1106, 1113 (7th Cir. 2013). The prospect
of evidence eventually being excluded on collateral review is
too remote to deter police misconduct. Id. at
habeas petitioner may obtain federal habeas review of a
Fourth Amendment claim only if he can show “(1) that
the state court denied him a full and fair hearing on his
claim, and (2) that the claim was meritorious.”
Monroe, 712 F.3d at 1113. “A petitioner has
had the benefit of such an opportunity so long as (1) he
clearly apprised the state court of his Fourth Amendment
claim along with the factual basis for that claim, (2) the
state court carefully and thoroughly analyzed the facts, and
(3) the court applied the proper constitutional case law to
those facts.” Miranda v. Leibach, 394 F.3d
984, 997 (7th Cir. 2005) (citing Pierson v.
O'Leary, 959 F.2d 1385, 1391 (7th Cir. 1992);
Cabrera v. Hinsley, 324 F.3d 527, 531-32 (7th Cir.
2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th
Cir. 2002)). “The examples of situations that would
fail to satisfy these requirements are extreme: the judge
taking bribery, sleepwalking, saying something as egregious
as ‘probable cause is not required in
Illinois.'” Haakenstad, 2017 U.S. Dist.
LEXIS 212933, at *12 (quoting Cabrera, 324 F.3d at
531). “Only if the court's error ‘betray[s]
an unwillingness on the part of the [state] judiciary to
treat [the petitioner's] claim honestly and fairly'
will a federal habeas court reach the merits of the Fourth
Amendment challenge.” Haakenstad, 2017 U.S.
Dist. LEXIS 212933, at *12 (quoting Monroe, 712 F.3d
response to the court's order to show cause, Brown argues
that the court of appeals did not really consider his
arguments. He notes that it initially mistakenly relied on a
pro se brief. When the error was pointed out, the court of
appeals reissued basically the same decision, although
omitting any reference to the pro se brief. (ECF No. 10 at
not enough for a petitioner to show that a state court's
decision was wrong. “Even an ‘egregious
error' … is not enough to support a writ of habeas
corpus (that's what it means to say that the exclusionary
rule does not apply on collateral attack); a blunder, no
matter how obvious, matters only in conjunction with other
circumstances that imply refusal by the state judiciary to
take seriously its obligation to adjudicate claims under the
fourth amendment.” Hampton, 296 F.3d at 564.
court cannot say that the court of appeals' review
“was in some way a sham.” See Cabrera,
324 F.3d at 531. The court noted that Brown's arguments
included the allegation that the affiant omitted the fact
that the informant had an active bench warrant for her
violation of a deferred prosecution agreement in a drug case.
(ECF No. 1-1 at 16-17, ¶¶7, 9.) The court of
appeals' recitation of Brown's claim demonstrates
that it was clearly apprised of the legal and factual basis
for the claim. The state court carefully and thoroughly
analyzed those facts and applied the proper connotational law
to those facts. (See, e.g., ECF No. 1-1 at 19-20,
¶14.) This was all that was required. Miranda,
394 F.3d at 997.
was able to present the merits of his Franks claim.
The state courts found that he failed to make the required
“'substantial preliminary showing' that the
omitted information … was critical to a probable cause
determination.” (ECF No. 1-1 at 19, ¶14 (citing
Franks, 438 U.S. at 155-56).)
Simply because Brown was denied a Franks hearing
does not mean he was denied a “full and fair hearing on
his claim.” Montenegro v. Bryant, 245
F.Supp.2d 926, 933-34 (C.D. Ill. 2003). This court is barred
under Stone from considering whether the state
courts properly applied the exclusionary rule, and his
petition must be dismissed.
the court concludes that Brown has failed to make a
substantial showing of a denial of constitutional right.
See 28 U.S.C. § 2253(c)(2); Rule 11 of the
Rules Governing Section 2254 Cases. Therefore, the court will
deny him a certificate of appealability.
IS THEREFORE ORDERED that Brown's petition and
this action are dismissed. The court denies Brown a
certificate of appealability. ...