[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 14380
Non

- Argument Calendar

____________________

FRANCISCO PALACIOS

- BARAS,
Petitioner

- Appellant,

versus WARDEN HANCOCK STATE PRISON,

Respondent

- Appellee.

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19

- cv

- 04024

- AT

____________________ USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 1 of 72 Opinion of the Court 21

- 14380

Before W ILSON , B RASHER , and E DMONDSON , Circuit Judges.
PER CURIAM:
Francisco Palacios

- Baras (“Petitioner”), a Georgia prisoner now proceeding with counsel, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner seeks to vacate his 2011 Georgia conviction for kidnapping. No reversible error has been shown; we affirm.
I. Briefly stated, Petitioner’s conviction stems from these facts. As part of an ongoing drug

- trafficking investigation, officers obtained warrants to intercept calls to and from three cell

- phonenumbers used by Petitioner. Some of the intercepted phone conversations led officers to believe that a person had been kidnapped for ransom. Officers set up surveillance on Petitioner’s home. When officers executed a traffic stop on two cars seen leaving the house, they found the kidnapping victim seated in the backseat. Officers arrested the suspects involved in the traffic stop but wereunable to locate Petitioner. The next day, officers “pinged” the location of Petitione r’s cell phone to obtain the phone’s location. Based on this data, officers were able to locate and arrest Petitioner.Following a jury trial, Petitioner was convicted of kidnapping and was sentenced to life imprisonment. Petitioner’s conviction was af firmed by the state appellate court. See Deleon

- Alvarez v. State , 751 S.E.2d 497 (Ga. Ct. App. 2013). USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 2 of 721

- 14380 Opinion of the Court 3In 2015, Petitioner filed a counseled petition for a writ of habeas corpus in the state court. There, Petitioner argued

-- based on the Supreme Court’ s decision in United States v. Jones , 565 U.S. 400 (2012)

-- that the warrantless GPS monitoring of Petitioner’s cell

- phone location constituted an unlawful search under the Fourth Amendment.
The state habeas court denied Petitioner relief. The state ha beas court rejected Petitioner’s argument under Jones, concluding that Jones was distinguishable from the facts of Petitioner’s case. The state habeas court noted that the critical issue in Jones was that officers affixed physically a GPS monitoring devic e to thedefendant’s car: conduct that constituted a “search” because it involved a physical trespass on defendant’s property. In contrast, the state habeas court explained that Petitioner’s case involved no physical trespass on Petitioner’s person or car . Instead, officers obtained location information remotely using the internal GPS capabilities of Petitioner’s cell phone. The state habeas court also noted that the Supreme Court in Jones declined expressly to address whether obtaining location informat ion “through electronic means, without an accompanying trespass” constituted a searchunder the Fourth Amendment. The state habeas court thus concluded that Jones was inapplicable to Petitioner’s case and provided no basis for habeas relief. The Supreme Court of Georgia later denied without comment Petitioner’s application for a certificate of probable cause. USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 3 of 74 Opinion of the Court 21

- 14380Petitioner timely filed the counseled section 2254 federal habeas petition at issue in this appeal. In pertinent part, Petitioner argued that the s tate habeas court unreasonably applied establishedfederal law when it failed to give Petitioner the benefit of the decision in Jones

. The district court denied Petitioner habeas relief, concluding that the state habeas court’s decision was a reasonable application of federal law. The district court, however, granted Petitioner a certificate of appealability on this issue: whether Petitioner’s “Fourth Amendment rights were violated under United States v. Jones , 565 U.S. 400 (2012), in connection with la w enforcement officials’ warrantless use of GPS tracking technology on Petitioner’s cell phone to locate him.” This appeal followed.
II.“We review a district court’s decision to grant or deny a habeas petition de novo , including its determination of whet her the state court’s decision was unreasonable.” Cave v. Sec’y, Dep’t of Corr ., 638 F.3d 739, 743 (11th Cir. 2011).

When the merits of a section 2254 habeas claim have been already adjudicated in state court, our review is highly deferential to the state court. See id . at 744. When

-- as in this case

-- the state appellate court affirms without an opinion, we “‘look through’ the unexplained decision to the last related state

- court decision that does provide a relevant rationale,” and “presume that the USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 4 of 721

- 14380 Opinion of the Court 5

u nexplained decision adopted the same reasoning.” See Wilson v. Sellers , 138 S. Ct. 1188, 1192 (2018). To obtain habeas relief, a petitioner must show that the statecourt’s ruling “was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. 2254(d).

A state

- court decision is “contrary to” established SupremeCourt precedent (1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law”;or (2) “if the state court decides a case differently than [the Supreme] Court has o n a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 412

- 13 (2000) (O’Connor, J., writing for the majority). A state court’s decision constitutes an unreasonable application of Supreme Court precedent “if the state court iden tifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id . at 413. The Supreme Court has stressed the distinction between “an unreasonable application of federal law” and “an incorrect application of federal law.” See Renico v. Lett , 559 U.S. 766, 773 (2010) (emphasis in original) (“This distinction creates ‘a substantially higher threshold’ for obtaining relief than de novo review.”). In reviewing a state court’s decision on habeas review, the proper inquiry is whether the state court’s application of federal law was USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 5 of 76 Opinion of the Court 21

- 14380 “objectively unreasonable,” not whether the state court “applied clearly established federal law erroneously or incorrectly.” Id . To

o btain habeas relief, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Cave , 638 F.3d at 744 (citing Harrington v. Richter , 562 U.S. 86, 103 (2011)). Here, the state habeas court determined reasonably that the circumstances involved in Jones were materially distinguishable from the circumstances involved in Petitioner’s case. In Jones , theSupreme Court stressed that the officers in that case attached physically a GPS tracker to the defendant’s car: a circumstance not involved in Petitioner’s case. See Jones, 565 U.S. at 404 (“It is important to be clear about what occurred in this ca se: The Government physically occupied private property for the purpose of obtaining information.”); id . at 406

- 07 (noting that the Fourth Amendment has historically been concerned with government trespass upon “persons, houses, papers, and effects”). The Supreme Courtalso declined expressly to address whether collecting location information via electronic monitoring absent a physical trespass

-- like the officers did in Petitioner’s case

-- would violate the Fourth Amendment. See Jones , 565 U.S. at 412. To extend a precedent is more and different from followinga precedent. We cannot conclude that the state habeas court’s determination that Jones offered no basis for habeas relief in USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 6 of 721

- 14380 Opinion of the Court 7Petitioner’s case was either contrary to, or an unreasonable applica tion of, clearly established Supreme Court precedent. We affirm the district court’s denial of Petitioner’s 28 U.S.C. § 2254 petition.

AFFIRMED. USCA11 Case: 21-14380 Document: 22-1 Date Filed: 02/08/2023 Page: 7 of 7