NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0112n.06
No. 09-5573
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RI CKY FU L CHER, Petitioner-Appellant,

v. L OGAN COU

NTY CI RCUI T COURT, et al., Respondents, and REBECCA PANCAKE, Warde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF KE NTUCKY

BEF ORE: MOORE and GRI FF I N, Circuit J udg es; and QU I ST, District J udg e. *
GRI FF I N, Circuit J udg e. Petitioner Ricky Fulche r appea ls the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habe as cor

pus, asser ting that his st ate- court c onvictions were obtained in violation of the Four th Amendment and the D ouble J eopar dy Clause. We aff

irm.
I

. The undisputed fac ts of this case wer e set forth by the Kentucky Supreme Court as follows:

The Honora

ble Gordon J

. Quist, Senior Uni te d States District J udg e for the Western District * of Michig an, sitting by

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A. I ndictment No. 01–CR–157.
On J uly 2 4 , 2 001, an unidentified caller repor ted to the Russellvil le Police Depa rtment that two Cauca sian males had r obbed a boy and fired a wea pon at hi m in the vicinity of Cave Springs Road in L og an County , Kentucky

. L aw enfor ceme nt u n i t s fr om the Kentucky State Police, the L og an County Sheriff’ s Offic e, and th e Auburn P olice Department beg an searching for the two men. Whi l e driving down Gaspe r River Road, some of the office rs passed [Fulcher]’s residenc e and noticed a number of people standing in the y ard, all of whom, upon observing t h e m ar ked police vehicles, immediately ran into the woods behind the residenc e. Whil e g iving chase , the office rs noticed two marijuana plants g rowing in [Fulcher’ s]’s back y ard and the scent of ammonia emana ting from an open window in the residenc e. Unable to obta in a response to knocks on the door of the re sidence , the offic ers soug ht a nd obtained a se arc h war

rant for the re sidence and surr ounding pr operty

. Whil e the office rs wer e awa iting arrival of the sear ch war rant, [Fulcher] emer g ed from the residenc e claiming to have been aslee p. The office rs order ed him to rema in outside until afte r the war

rant was executed. One of the persons who had run into the woods, David Ha rrison, was appre hended but not char g ed. Six others, C.J

. Ander son, J ohnnie Finn, Kandi Finn, An drea Fr eema n, J ody Cherry , and Matthew J ones, voluntarily

returne d to the residenc e and w ere subsequently arr ested.
* * * The July 24, 2001, sear ch of [Fulche r]’s property was conducted by

four Ke ntucky State Police office rs. Outside [Fulcher]’s residenc e they found (1) the two marijuana plants; (2) two plastic container s containing “pill doug h;” a “burn pile” cont ai ning (3) sever al empty puncture d Prestone starting fluid ca n s (t he ether is remove d by puncturing the bottom of the can) , (4) sever al empty Coleman Fu el cans; (5) two box es filled with used coff ee filters; (6) a g lass container containing used co ff ee filters and three lay ers of liquid attache d by plastic tubing to a seale d ketchup bottle which was “cooking ” the liquid in the g lass container , i.e., g as was then passing from the k etchup bottle throug h the plastic tubing into the g lass container causing the liquid contents of the container to bubble; and (7) an altere d propane tank fitted with a copper valve that had turned a bluish-gr een color (often ca u s ed by a chemica l rea ction with anhy d ro u s ammonia) and containing a small amount of liquid that field-teste d positive f

or anhy drous ammonia. After field-testing the contents of the propane tank, the o ff

i ce rs d i sabled the tank from future use by puncturing it with bullet holes. The office rs conclude d that the ketchup bottle attache d to the bubbling g lass jar w as a hy drog en chloride “g ener ator” that was “cooking ” the coff ee filters - 2 -No. 09-5573

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in the jar in order to extract the methamphetamine residue rema ining from an ear lier filtering proce ss. The three lay er s in the bubbling jar consisted of a powder y substance at the bottom, a salty liquid substance in the middle, and a clea r substance at the top. The contents of all three lay ers subsequently tested positive for methamphetamine.
I nside the residence, the office rs found (1) a bottle of denatured alcohol on t h e bar in the living room and (2) an alum inum foil “boat,” a device commonly used in smoking methamphetamine, in the bedroom. The “boat” contained burn marks (the methamphetamine is place d on the “boat,” which is then heate d so that the fumes can be inhaled). I n the kitchen, the of fice rs found (3) two funnels and (4) a Mason j ar, as well as cans of (5) L iqu i d Fi re and (6) Coleman Fue l, and (7) a g lass jar in the ref rig era tor containing ether

. They also found what they beli ev ed t o b e (8) a bowl of liquid anhy drous ammonia in the deep fre eze. The odor emana ting from this bowl was the odor that had first attrac ted their attention and prompted them to obta in the sear ch war

rant. The office rs diluted the substance in the bowl and poured it onto the g round without testing it. Following the sear ch, [Fulcher] was arr ested and ch ar ged with manufa cturing methamphetamine, p ossession of anhy drous ammonia in an unapprove d container with intent to manufa cture methamphetamine, possession of drug para pherna lia, and possession of marijuana . He posted bond a nd was re lease d.
* * *
B. Indictment No. 01–CR–179.
On Aug ust 1, 2001, J ody Cherry , one of the persons arr ested on [Fulcher]’s proper ty on J uly 24, 2001, signe d a criminal complaint acc using [Fulcher] of twice threa tening t o k i ll him. On Aug ust 3, 2001, Captain Wallace Whit aker and Deputy S t ev e Stratton of the L og an County Sheriff’ s Offic e proce eded to [Fulcher]’s residenc e to serve him with arr est war

rants for terror istic threa tening

. Upon their arr ival, they saw the same altere d propane tank that the state police office rs had disabled on Jul y 24, 2001. They als o detec ted a strong odor that Stratton believed was “ammonia or ether .” Ba sed on the prese nce of this odor and the altere d propane tank, the office rs obtained a w arr ant to sear ch [Fulche r]’s residenc e and pr operty

. During the sear ch inside the residenc e, the office rs discovere d (1) two plastic container s with powder in the bottom that wer e still smoking, and two empty plastic liquid dishwasher bot t l es t h at had been fitted with tubing and that wer e still - 3 -No. 09-5573

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emana ting g as. Stratton opined that these items had rec ently been used as homemade g ener ators to separ ate methamphetamine from ether during the l ast stag e of the manufa cturing proce ss. They also found (2) a rubber hose; (3) salt; and (4) a g lass jar c ontaining f

luid that later tested positive for the pre sence of methamphe tamine; as well as (5) rolling paper s; (6) a piece of burnt aluminum foil; (7) a Be rez torch that could be used to heat the foil for smoking methamphetamine or to cook the denatur ed alcohol off of the powder ed ephedr ine or pseudoephe drine; and (8) pipes and sy ring es with burn residue. I n addition, they found (9) a g lass jar containing a liquid substance that was emana ting an o d or that Stratton identified as the odor of anhy drous ammonia, as opposed to, e.g ., diluted (aque ous) household ammonia. He also testified that anhy drous ammonia is a hazar d o u s materia l and that law enfor ceme nt proce dures in plac e at that time prohibited its st orag e or tra nsport to a labora tory

. Be cause the s heriff ’s office did not possess equipmen t t o field-test the substance, Stra tton dilut ed it with water and poure d it onto the gr ound.
Ou t s i d e t he residenc e, the office rs located a burn pile containing (1) punctured Prestone starting fluid cans and (2) rubber hose. Under the hood of a junked car , they located (3) a bag full of lithium strips. Ba sed on thes e fi n d i n gs , they char g ed [Fulcher] with manufa cturing methamphetamine, possession of anhy drous ammonia in an unapprove d container with intent to manufa cture methamphetamine, and possession of drug para

pherna lia. Fulcher v . Commonwealth , 149 S.W .3d 363, 367-71 (Ky . 2004) (“ Fulcher I ”). Following a jury trial, Fulche r was convicted on all the charg es l evied ag ainst him in both indictments: two counts of manufa cturing methamphetamine, Ky

. Rev. Stat. § 218A.1432(1); two
counts of possession of anhy drous ammonia in an unapprove d container with intent to manufa cture methamphetamine, K

y . Rev. Stat. § 250.489; two counts of possession of drug para pherna lia, Ky

. Rev. Stat. § 218A.500(2); and one count of possession of marijuana , Ky

. Rev. Stat. § 218A.1422. Fulcher I , 149 S.W .3d at 366. Fulche r wa s therea fter se ntence d to 30 y ear s’ imprisonment. Id. at 367.

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Followi n g sentenc ing, Fulche r prese nted sever al claims of err or befor e the Kentucky Supreme Court, inc luding violation of the Double J eopar dy Clause. Specifica lly , Fulche r asser ted that “the convictions of separ ate off en s es o cc urring on J uly 24, 2001, and Aug ust 3, 2001, wer e premised upon the same evidenc e[.] ” Id. I n addition, Ful ch er challeng ed the sufficie ncy of the evidenc e, the jury

instructions, an evidentiar y ruling , and a se ntencing enhanc ement. Id. Upon revie w, the Kentucky Supreme Court reve rsed b o t h o f Fulche r’s manufa cturing convictions , holding that Fulche r did not possess the nece ssary chemica ls and equipment to be convicted under a “possession” theo ry , requiring retrial on an “actual manufac ture” theory

. Id. at 370-74. The c ourt also re verse d Fulche r’s c onviction for possession of anhy drous ammoni a in an
unapprove d container on Aug ust 3, holding that the jury instructions improperly allowed the jury to consider t h e d i sabled propane tank left afte r the J uly 24 sear ch. Id. at 375. This char g e was also

rema nded for retria l. The court aff irmed Fulche r’s convictions for possession of drug para pherna lia

on both J uly 24 and Augu s t 3

. Id. at 381. Finally , the court aff irmed Fulche r’s convictions for possession o f marijuana and possession of anhy drous ammonia in an unapprove d container on J uly 24. Id. Upon rema

nd, Fulche r moved to suppress evi dence stemming from both the J uly 24 and Aug ust 3 sear ches. This motion was denied, and the case proce eded t o retria l. Fulche r was

rec onvicted of possession of an h y d ro us ammonia in an unapprove d container and manufa cturing methamphetamine on A ug ust 3. I n addition, Fulche r was convicted of complicity to manufac ture methamphetamine on J uly 24. Fulcher v . Commonwealth , Nos. 2005–SC–000883–MR ,

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2005–SC–000952–TG, 2007 WL 1 5 3 6 8 5 4 , at *1 (Ky

. May 24, 2007) (“ Fulcher II

”). Upon

rese ntencing , Fulche r rec eived a total sentenc e of 49 y ear s’ imprisonment, 19 y ear s longe r than his initial sentence. Id. at *1. Following sentenc ing, Fulche r once ag ain pursued a direc t appea l, challeng ing the denial of his moti on to suppress, the sufficie ncy of the evidenc e supporting his c onvictions, the trial court’ s

re fu s al t o instruct the jury on fac ilitation, and an evidentiar y ruling

. Id. at *3-*7. The Kentucky Supreme Court found no merit in these claims and aff irmed Fulche r’s convictions and sentenc e. Id. at *8.
On April 14, 2008, Fulche r fi l ed t h e p rese nt petition for a writ of habea s corpus. This petition prese nts four g rounds for relief : (1) “convic tion ob tained by use of evidenc e g ained pursuant
to an unconstitutional sear ch and s ei z u re ”; (2) use of “evide nce obtained pursuant to an unlawful

arr est”; (3) “convic tion obtained by the unconstitutional failure of the prosec ution to disclose to the defe ndant [ evidenc e] favor able to [ the] defe nse”; and (4) “conviction obt ained by violation of t he
p ro t ec tion ag ainst Double J eopar dy .” Upon responde nts’ motion for summary judgme nt, a
mag istrate judge rec ommended that the motion be g rante d and the petition be denied. Specifica lly , the mag ist

r a te f ound that Fulche r’s Four

th Amendment claims wer e not cog nizable on habea s revie w and t h at t he rema ining claims wer e proce durally defa ulted. After consideration of Fulche r’s

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objections, the district court adopted t h e mag istrate’s repor t and rec ommendation. This timely
appea l followed. 1
I I

. We revie w the district court’s habea s decision de novo. Souter v. Jones , 395 F.3d 577, 584 (6th Cir. 2005). The Antiterror ism a nd Effe ctive Dea th Pena lty Act of 1996 (“ AEDPA”) supplies the limit ations of fede ral habea s revie w of state court proce eding s. Under AEDPA, an application for a writ of habea s corpus shall not be g rante d with respe ct to any claim that was adjudicate d on the merits in state court pr ocee dings unle ss adjudication of the c laim: (1) resulted in a decision that was contra ry to, or involved an u n re as o n ab l e application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonabl e d et er m i n ation of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d); Harris v. Haebe rlin , 526 F.3d 903, 909 ( 6th Cir. 2008).
I I I

. Fulche r asserts that the Kentucky courts er red in rejecting his Four

th Amendment claims. Such claims, howeve r, are not g ener ally cog nizable on habea s revie w. I ndeed, “whe re the State has provided an opportunity for full and fair litigation of a Four th A mendment claim, the Constit ution does not require t h at a state prisoner be g rante d fede ral habea s corpus relief on the g round that

On ap p eal, Fulche r does not dispute that his third g round for relief , failure to disclose 1 favor able evidenc e to the defe nse pursuant to Brady v. Maryland , 373 U.S. 83, 87 (1963), is proce durally

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evidenc e obtained in an unconstitutional sear ch or seizure was introduced at his tr i al

. ” Stone v. Powell , 428 U.S. 465, 482 (1976).
I n order to deter

mine whether a petitioner rec eived a “full and fair” opportunity to litigate a Four th Amendme n t claim, we apply a two-par t test. First, we “must deter mine whether the state
proce dural mecha

nism, in the abstrac t, prese nts the op p o rt u n i t y to raise a fourth amendment claim[,] ” and se cond, we “must deter mine whether prese ntation of the claim was in fa ct frustrated beca use of a failure of that m echanism.” Riley v. Gray , 674 F.2d 522, 526 (6th Cir. 1982). I n perf orming this analy sis, we do not revie w the “c orre ctness” of the state c ourt dec ision. Id. Upon revie w, we hold that Fulc h er h ad a ful l and fair opportunity to litigate his Four th Amendment claims in state court. As his primary arg ument, Fulche r asser ts that the Kentucky State Police acte d in b ad faith in obtaining the Aug ust 3 sear ch war rant, which he contends was not supported by

probable cause . This prec ise issue, howeve r, wa s addre ssed at trial a nd revie wed by the Kentucky Supreme Court. Fulcher II , 2007 WL 1536854, at *3-*4. Moreove r, th er e i s no evidenc e indicating that Fulche r’s prese ntation of his claim was somehow frustra ted. Acc ording ly , Fulche r’s arg uments befor e this court, which g o to the “cor rec tness” of the Kentucky Supreme Court’s analy sis, will not be conside red. Riley , 674 F.2d a t 526. Wit h reg ard to the July 24 sear ch, Fulche r ag ain asser ts tha t the war

rant was not suppor

ted by probable cause
. T h i s cl ai m , like the first, is not cog nizable on habea s revie w as Fulche r had a “full and fair” opportunity to litigate this claim in sta t e court. Id. What’s more, this claim is
proce durally defa

ulted, as Fulche r failed to challeng e the J uly 24 sear ch on direc t appea l and he may

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no longe r asser

t the claim in state-c ourt proce eding s. Fulcher II , 2007 WL 1536854, at *3 n.1.
Acc ording ly , the claim is barr ed.
I V.
I n his next claim of err or, Fulche r asser ts that the jury ’s consideration of the same evidenc e to support multi ple convictions violated the D ouble J eopar dy Clause. Specific ally , he asse rts that evidenc e left behind by office rs afte r the J uly 24 sear ch formed the basis for his convictions based on the Aug ust 3 searc h. This claim is without m erit for sever al re asons. First, Fulche r forf

eited this claim. I n his habea s p et i t i o n , with reg ard to double jeopar dy , Fulche r stated: “T he prose cution used the same evidenc e in both char g es to obtain the convic tion of 19 more y ear s in the second tria l than in the first trial of 30 y ear s, for a total of 49 y ear s.” This
statement demonstrates that Fulche r took issue with his longe r sentenc e upon retria l, not the use of the same e vidence to obtain multi ple convictions.
I n addre ssing Fulche r’s double jeopar dy claim, the mag istrate fra med the issue as follows: “[c]onviction obtained by a violation of the protec tion ag ainst double jeopar dy inasmuch as he

rec eived m o re y ea rs on retria l.” The mag istrate did not addre ss the duplicative consideration of evidenc e, and Fulche r did not object to this omission. Acc ording ly , Fulche r has forf eited this issue
on appea l. See United States v. W alters , 638 F.2d 947, 949- 50 (6th Cir. 1981).
Moreove r, even apart fr o m the forf eiture, Fulche r has proce durally defa ulted his double jeopar dy claim with reg ard to two out of his three convictions stemming from the Aug ust 3 sear ch. These convictions wer e one count of manufa cturing methamphetamine, one count of possession of

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anhy drous ammonia in an unapprove d container , and one count of possession of drug para pherna lia.
As Fulche r points out, he direc tly appea led his first set of convi ct i o n s t o t h e Kentucky Supreme
Court and prese nted a double jeopar dy claim based upon the duplicative consideration of evidenc e. Fulcher I , 149 S.W .3d at 374. That cour t h el d that the use of duplicative evidenc e was not a violation of doubl e jeopardy with reg ard to his possession of drug paraphern al i a and aff irmed t he Aug ust 3 conviction. Fulche r’s convictions for manufa cturing methamphetamine and possession of anhy drous ammonia in an unapprove d container on Aug ust 3 wer e both reve rsed and rema nded. Id. at 375. Following retria l, Fulche r wa s ag ain convicted of t hese crimes. However, upon direc t revie w of these convictions, Fulche r did not prese nt a double jeopar dy claim, resulting in proce dural defa ult. Coleman , 501 U.S. at 731; Hartman , 492 F.3d a t 358.
We disag ree with Fulche r’s asser tion that it was unnece ssary to rea ssert the double jeopar dy claim in his second direc t appea l. This court lacks jurisdiction over claims “not fairly prese nted to the state courts.” Blackm on v. Booke r , 394 F.3d 399, 400 (6th Cir. 2004). The very purpose of the exhaustion requirem en t is to “g ive t he st ate courts an opportunit y to act on [a petitioner’s] claims befor e he prese nts those claims to a fede ral court in a habea s petition.” O’Sullivan v. Boerck el , 526 U.S. 838, 842 (1999). Her e, F ulcher did not a ssert befor e any Kentucky court that his c onvictions
upon retria l wer e procur ed in violation of the Double J eopar dy Clause. Acc ording ly , the claim was left unexhausted and is now proce durally defa ulted. See King v

. Rey nolds , 77 F.3d 492, 1996 WL 77034, at *2 (10th Cir. 1996) (Ta ble).

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This leave s Fulche r’s conviction for possession of drug para pherna lia on Aug ust 3. Be fore the Kentucky Supreme Court, Fulche r asser ted that this conviction was improperly obtained throug h the jury ’s considera

tion of the same evidenc e used to obtain his J uly 24 conviction. The court reje cted this arg ument, holding that the continuous possession of drug para pherna lia allows for more than one conviction when the posse ssion is “interrupted” by leg al proce ss. Fulcher I , 149 S.W .3d
at 376-78. Fulche r does not arg ue that this holding constitutes an unrea sonable application of clea rly established fede ral law or involves an unrea sonable deter mina tion of fac t. 28 U.S.C. § 2254(d). Rather, he mere ly asser

ts, without develope d arg

umentation, that the ju

r y ’ s c o n s ide ration of the same evidenc e to convict him of two separ ate crimes constitutes double jeopar dy

. Acc ording ly , this
arg ument is forf

eited. See Taylor v. McKee , 649 F.3d 446, 452 (6th Cir. 2011) (“[I ]ss ues adver ted
to in a perf

unctory manner , unacc ompanied by some eff ort at develope d arg umentation, are deeme d waived.” ) (inter

nal quotation marks and c itation omit ted).
Moreove r, even if Fulche r had not forf eited his challeng e of the Kentucky Supreme Court’s analy sis, any such challeng e would fail. We may g rant habea s relief only if the state-c ourt decision
“wa s contra

ry to, or involved an unrea sonable applicatio n o f, clea rly established Fe dera l law,” or “re sulted in a decision that was based on an unrea sonable deter mination of the fac ts.” 28 U.S.C. § 2254(d ). T h er e i s nothing in the rec ord to indicate that the Kentucky Supreme Court made an

unrea sonable de termination of fa ct, and its applica tion of fede ral lawwas not unre asonable

.

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The Double J eopar dy Clause provides that no person shall “be subject for the same offe nce
to be twice put in jeopar dy of life or limb.” U.S. Const., amend. V. Gene rally , “continuous and 2 uninterrupted possess io n ” o f c o n tr aband may be the subject of only one criminal prosec ution. United
States v. Jone

s , 533 F.2d 1387, 1390 ( 6th Cir. 1976) (citing Ex parte Snow , 120 U.S. 274, 281-86 (1887))

. The Kentucky Supreme Court held t hat Fulcher’ s possession of drug para pherna lia, first discovere d on J uly 24, was interrupted by leg al proce ss, allowing for an additional prosec ution. Although the Supreme Court has not direc tly addre ssed this is sue, the fede ral circ uit courts have consistently held that a continuous course of conduct, such as possession of an illega l item, may be interrupted so as to allow for multipl e convictions. See , e.g. , United States v. Conley , 291 F.3d 464,
470 (7th Cir. 2002); United St ates v. Rive ra , 77 F.3d 1348, 1351- 52 (11th Cir. 1996). I ndeed, we have pr eviously

held that: The return of an indictment char g ing a course of conduct preve nts the relitig ation of any course of conduct char g ed in the indict m en t which is tried or dismiss ed with prejudice and which occur red prior to the return of the indictment. Howeve r, it does not cut off the abili ty of t he Government t o char g e a course of conduct subseque nt to the indictment which also establishes possession of the same c ontraba nd.
Jones , 5 3 3 F. 2 d at 1391. I n this case , it is unclea r whether Fulche r was actua lly indicted for his
J uly 24 conduct prior to the Aug ust 3 sear ch. Neve rtheless, the Kentucky Supreme Court held that Fulche r’s arre st was suff

i ci ent “lega l proce ss” t o interrupt his possession. Given that Fulche r has

The Double J eopar dy Clause applies ag ainst the States throug h the Due Process Clause of 2 the Four teenth Amendme nt. Benton v. M aryland , 395 U.S. 784, 787 (1969). - 12 -No. 09-5573

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provided no contra

ry authority , we hold that this finding is not an unrea sonable application of clea rly established fe dera l law.
V.
I n his final claim, Fulche r as s er ts that the Kentucky courts viol ated double jeopar dy when he rec eived a substantially highe r sentenc e upon retria l. This claim, howe v er , wa s n o t raised on direc t a ppeal. Acc ording ly , it is proce durally defa ulted. Coleman , 501 U.S. at 731; Hartman , 492 F.3d at 358. Moreove r, even if we wer e to addre ss this claim, it is clea rly without merit. Upon retria l, a jury is not prec luded from imposing a highe r sentenc e than that initially imposed. Chaffi n

v. Stynchc ombe, 412 U.S. 17, 18 (1973). Thus, Fulche r is not entitled to habea s relief on this claim.
VI

. For the foreg o i n g re as o ns, we affirm the district court’s denial of Fulcher’ s habea s corpus petition.

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