#### UNITED STATES of America, Plaintiff-Appellee, v. Rohn Martin ISHMAEL, Defendant-Appellant.

No. 02-40056.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 2003.

*742Kathleen A. Felton (argued), U.S. Dept, of Justice, Crim. Div., App. Section, Washington, DC, Richard Lee Moore, Asst. U.S. Atty., Tyler, TX, for Plaintiff-Appellee.

G. Patrick Black, Fed. Pub. Def., Amy R. Blalock and Wayne R. Dickey (argued), Asst. Fed. Pub. Defenders, Tyler, TX, for Defendant-Appellant.

Before EMILIO M. GARZA and DENNIS, Circuit Judges, and HEAD,* District Judge.

*

 District Judge of the Southern District of Texas, sitting by designation.

EMILIO M. GARZA, Circuit Judge:

Federal prisoner Rohn Martin Ishmael appeals the district court’s denial of his 28 U.S.C. § 2255 petition for habeas relief. The district court granted a certificate of appealability on whether law enforcement officers violated Ishmael’s Fourth Amendment rights by employing, without a warrant, thermal imaging devices to detect heat emanating from a hydroponic laboratory located in a commercial building on Ishmael’s property.

Ishmael originally raised his Fourth Amendment challenge in a pre-trial motion to suppress. Following our rejection of this claim on interlocutory appeal in *United States v. Ishmael,*48 F.3d 850 (5th Cir.1995), Ishmael entered a plea of guilty but “reserve[d] the right” in the plea agreement to bring a collateral challenge in the event the use of thermal imaging technology was subsequently declared unconstitutional. The instant petition is based on the Supreme Court’s decision in *Kyllo v. United States,*533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), which held that the warrantless use of thermal imaging technology to measure heat emanating from a home constituted a presumptively unreasonable search.

We do not reach the merits of Ishmael’s § 2255 petition because we hold that he had a full and fair opportunity to litigate his Fohrth Amendment claim in pre-trial proceedings and on direct appeal. Accordingly, collateral review of that claim is barred by *Stone v. Powell,*428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). *See United States v. Cook,*997 F.2d 1312, 1317 (10th Cir.1993) (“[I]t is clear that the [Supreme] Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they are limited in § 2254 *proceedings*— i.e., to be addressed only if a defendant has not had a full and fair opportunity to raise the claims at trial and on direct appeal.”); *Tisnado v. United States,*547 F.2d 452, 456 (9th Cir.1976) (same). Although we express no view regarding the effect of *Kyllo*on our previous disposition of Ishmael’s Fourth Amendment claim, a change in the law does not, by itself, render prior proceedings any less “full and fair” for purposes of *Stone. See Gilmore v. Marks,*799 F.2d 51, 57 (3d Cir.1986) (“The Courts of Appeals ... have consistently held that an erroneous *743determination of a habeas petitioner’s Fourth Amendment claim does not overcome the *Stone v. Powell*bar.”).

Ishmael’s Fourth Amendment claim is also barred by *Teague v. Lane,*489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), because the new constitutional rule of criminal procedure established in *Kyllo*does not apply retroactively to Ishmael’s conviction, which was final at the time *Kyllo*was decided. Neither of the exceptions to *Teague’s,*non-retroactivity rule applies here. *Id.*at 311-14, 109 S.Ct. 1060.

Contrary to Ishmael’s contention, nothing in his plea agreement prohibits the Government from opposing his habeas petition based on *Stone*or *Teague.*Moreover, although the Government failed to raise the procedural bars of *Stone*and *Teague*in the district court, we are not precluded from applying those bars on appeal. *See Davis v. Blackburn,*803 F.2d 1371, 1372-73 (5th Cir.1986) (“Where the record clearly shows that a petitioner had a full and fair hearing in state court, we hold that a federal court is not foreclosed from *sua sponte*applying the principle of *Stone.”)', see also Jackson v. Johnson,*217 F.3d 360, 361 (5th Cir.2000) (“[A]bsent compelling reasons to the contrary, a federal court should apply *Teague*even when it has been implicitly waived by the State”).

For the foregoing reasons, the district court’s denial of Ishmael’s § 2255 petition is

AFFIRMED.