* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 11/27/96

FOR THE TENTH CIRCUIT

LEOBARDO MARTINEZ,

Petitioner-Appellant,

v.

MICHAEL CODY, Warden;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 95-7178

(D.C. No. CV-95-132-S)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER,** District

Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of
1 On April 24, 1996, while this case was pending on appeal, the President

signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-132, 110 Stat. 1214. Title I curtails the scope of collateral review of

convictions and sentences. We need not decide the extent to which the

amendments to habeas corpus review apply to cases pending when the Act was

signed into law or the effect the amendments may have if they do apply because,

(continued...)

-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Appellant Leobardo Martinez was convicted in Oklahoma state court of

unlawful possession of marijuana and failure to affix a tax stamp. His conviction

was affirmed by the Oklahoma Court of Criminal Appeals. Petitioner filed a

petition for writ of habeas corpus in the United States District Court for the

Eastern District of Oklahoma alleging his confinement was unconstitutional 

because of (1) prosecutorial misconduct where the prosecutor at closing argument

appealed to societal alarm; (2) inadmissibility of evidence garnered as the result

of an illegal search and seizure; (3) pretextuality of the underlying traffic stop;

and (4) denial of due process when defense counsel was not permitted to question

the highway patrol officer about whether petitioner had been given a timely

Miranda warning. The magistrate judge’s recommendation that the petition be

dismissed was adopted by the district court. Our review of the factual findings of

the district court is for clear error; conclusions of law are reviewed de novo. See

Matthews v. Price, 83 F.3d 328, 331 (10th Cir. 1996).1
1

(...continued)

even under the more expansive scope of review permitted before the Act, three of

petitioner’s four claims fail. In light of our remand of petitioner’s remaining 

issue, we need not address the applicability of the Act at this time.

-3-

We turn first to petitioner’s contention that comments by the prosecutor

appealing to societal alarm in his closing argument deprived him of his right to

due process. Initially, we note that “[w]hile improper appeals to societal alarm

and requests for vengeance for the community to set an example are unwarranted,

they are also not the type of comments that the Supreme Court has suggested

might amount to a due process violation.” Brecheen v. Reynolds, 41 F.3d 1343,

1356 (10th Cir. 1994)(quotation omitted), cert. denied, 115 S. Ct. 2564 (1995). 

Additionally, because the trial court judge addressed the impropriety of the

prosecutor’s remarks by sustaining an objection to them, R. Vol. I at 158, and by

giving a curative instruction, id. at 169, and in light of the ample evidence in the

record of defendant’s guilt, see Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir.

1994), cert. denied, 115 S. Ct. 2278 (1995), we affirm the determination of the

district court that the prosecutor’s comments did not result in a deprivation of due

process.

Petitioner’s second issue relates to the circumstances surrounding his

traffic stop and the eventual search of his vehicle. Petitioner argues that the

consent to search which he gave the highway patrolman was involuntary. 
-4-

Alternatively, he argues that his extended detention by the patrolman was not

based on a reasonable and articulable suspicion that he was involved in illegal

activity. Because his detention was unreasonable and in violation of the Fourth

Amendment, and because such illegality was not cured by voluntary consent,

petitioner contends that the evidence seized as a result of this unconstitutional

detention should have been suppressed.

Ignoring the huge corpus of federal constitutional law dealing with traffic

stops under the Fourth Amendment, the magistrate judge determined that this

issue amounted to a question of state evidentiary law and thus was an

inappropriate basis upon which to ground a petition for habeas relief. We think

otherwise and remand this case for further proceedings. 

The ultimate determination of whether a detention was reasonable is a

question of law which we review de novo. See United States v. Walker, 933 F.2d

812, 815 (10th Cir. 1991). The reasonableness of a traffic stop is determined with

reference to the analysis set out in Terry v. Ohio, 392 U.S. 1 (1968). See

Walker, 933 F.2d at 815. This analysis requires us to answer two questions: (1)

was the action of the officer “justified at its inception[?]” and (2) was it

“reasonably related in scope to the circumstances which justified the interference

in the first place[?]” Terry, 392 U.S. at 20.
-5-

It is clear that the action of the patrolman in this case was “justified at its

inception.” The officer testified that petitioner had been speeding, R. Vol. I at

22, and the warning citation given petitioner reflects that radar detected him

going five miles over the speed limit, Petitioner’s Br. at Ex. B. This evidence is

unrebutted. Because petitioner was speeding, there is no doubt that the initial

stop was justified. See Walker, 933 F.2d at 815. This conclusion also disposes of

petitioner’s contention that the stop was a subterfuge for searching his vehicle. 

We have recently held that a traffic stop is valid if based on an observed traffic

violation, and that it is “irrelevant that the officer may have had other subjective

motives for stopping the vehicle.” United States v. Botero-Ospina, 71 F.3d 783,

787 (10th Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996).

Having established that the stop of petitioner’s vehicle was legitimate, our

next inquiry under Terry is whether the detention “was reasonably related in

scope to the circumstances which justified the interference in the first place.” 

Terry, 392 U.S. at 20. Absent consent by the detainee, “[i]n order to justify ‘a

temporary detention for questioning,’ the officer must also have reasonable

suspicion ‘of illegal transactions in drugs or of any other serious crime.’” United

States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988)(quoting Florida v. Royer,

460 U.S. 491, 498-99 (1983)), overruled in part by United States v. Botero-
2 Our review of the state court record in this case leads us to conclude that

petitioner failed to raise in state court the claim that the officer improperly

(continued...)

-6-

Ospina, 71 F.3d 783. We first address the posture of the consent issue in this

case.

If an encounter between a police officer and a motorist is consensual, the

Fourth Amendment ban on unreasonable searches and seizures does not come into

play. See Walker, 933 F.2d at 816-17. However, retention of a motorist’s

driver’s license and/or other pertinent documents by the officer during any

questioning precludes a conclusion of consent until the documents are returned. 

See id. at 817. Here, there is no evidence that petitioner’s driver’s license was

returned to him at any time during his detention, and the district court made no

findings on this issue. If these documents were not returned, petitioner’s

detention would have been a seizure for Fourth Amendment purposes. See id.

Because the voluntariness of consent is a question of fact to be evaluated with

reference to all of the circumstances, see id., we must remand this case to the

district court for further proceedings regarding this issue.

We note that, even if petitioner on remand prevails on the consent issue, the

extended detention may still have been lawful if the officer had a reasonable and

articulable suspicion of criminal activity. See United States v. Turner, 928 F.2d

956, 959 (10th Cir. 1991).2

 
2

(...continued)

extended the scope of the detention in an effort to search for evidence of

wrongdoing. Because Oklahoma precludes a prisoner from raising on collateral

attack an issue that could have been, but was not, raised on direct appeal, see

Webb v. State, 661 P.2d 904, 905 (Okla. Crim. App. 1983), petitioner may be 

procedurally barred from raising the issue in his § 2254 petition. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Although Oklahoma did not assert

procedural bar as a defense to the district court’s consideration of this issue, this

court has concluded that a federal court may raise state procedural default sua

sponte in a § 2254 proceeding. See Hardiman v. Reynolds, 971 F.2d 500, 502-04

 (10th Cir. 1992). Petitioner on remand should be permitted the opportunity to

respond to the procedural bar issue.

-7-

Petitioner’s final assignment of error is his contention that he was deprived

of due process when the trial judge prevented his defense counsel from inquiring

of the officer regarding when and whether petitioner had received a Miranda

warning. The trial judge sustained an objection to this testimony on the grounds

of materiality. Id. at 67. 

We review a trial court’s rulings on the admissibility of evidence for abuse

of discretion. United States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994), cert.

denied, 115 S. Ct. 1387, 1806 (1995). It is clear that the issue of whether a

person in custody has waived Fifth Amendment rights is a question of law and is

not a proper issue for jury consideration. See United States v. Hernandez, 93

F.3d 1493, 1501 (10th Cir. 1996). The trial judge was within his discretion to

refuse to allow this line of questioning.
-8-

The order of the United States District Court for the Eastern District of

Oklahoma is VACATED and the case is REMANDED for further proceedings. 

Entered for the Court

G. Thomas Van Bebber

District Judge