NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0028n.06

No. 20-3494

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANDRE TERRELL,

Petitioner-Appellant,

v.

ED SHELDON, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF 

OHIO

OPINION

Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

SILER, Circuit Judge. Andre Terrell appeals the district court’s dismissal of his 28 U.S.C. 

§ 2254 habeas petition alleging error in the Ohio state courts’ resolution of his Fourth Amendment 

violation argument. We AFFIRM. 

In 2016, Terrell was convicted of various drug offenses in Ohio state court. Before his 

trial, Terrell moved to suppress certain evidence, in part, because the search warrant used to search 

his hotel room and seize items therein was allegedly “defective.” Although Terrell made numerous 

arguments attacking the validity of the search warrant, he impliedly concedes that he did not 

specifically make the argument that the warrant lacked sufficient particularity; rather, Terrell 

argues that he did not need to specifically make such an argument because “[t]he Ohio Supreme 

Court’s decision in [State v.] Castagnola[, 46 N.E.3d 638 (Ohio 2015)] holds that the issue of 

particularity of a search warrant is implicit in a probable cause analysis.” Therefore, Terrell argues, 

by challenging probable cause at the suppression hearing, his particularity argument was 
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preserved, and the Ohio Court of Appeals erred when it found that Terrell “waived all but plain 

error [review]” of that issue.

“[W]here the State has provided an opportunity for full and fair litigation of a Fourth 

Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas 

corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was 

introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482 (1976). “Stone precludes habeas 

review ‘where the State has provided an opportunity for full and fair litigation of a fourth 

amendment claim . . . .’ This circuit . . . [has] concluded . . . that the state court need do no more 

than ‘take cognizance of the constitutional claim and rule in light thereof.’” Riley v. Gray, 674 

F.2d 522, 525 (6th Cir. 1982) (citations omitted). “Stone and Moore v. Cowan, [560 F.2d 1298 

(6th Cir. 1977),] . . . require a district court to make two distinct inquiries in habeas proceedings. 

Initially, the district court must determine whether the state procedural mechanism, in the abstract, 

presents the opportunity to raise a fourth amendment claim. Second, the court must determine 

whether presentation of the claim was in fact frustrated because of a failure of that mechanism.” 

Id. (citations omitted). 

Terrell concedes a sufficient procedural mechanism in the abstract but argues a failure of 

that mechanism. Specifically, he argues that the Ohio Court of Appeals’ decision to review his 

particularity argument for plain error rather than de novo “frustrated” the presentation of his Fourth 

Amendment claim. A review of the Ohio Court of Appeals’ opinion rejecting Terrell’s 

particularity argument, however, reveals that Terrell’s contentions are meritless. State v. Terrell, 

95 N.E.3d 870, 895–97 (Ohio Ct. App. 2017). 

Glaringly omitted from Terrell’s briefs is any argument as to how the Ohio Court of 

Appeals’ review of his particularity argument under the plain error standard precluded him from 
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“an opportunity for full and fair litigation of [his] Fourth Amendment claim[.]” Stone, 428 U.S. 

at 482. The Ohio Court of Appeals applied the very substantive Castagnola framework for 

analyzing particularity that Terrell would seemingly have had that court apply under de novo 

review. In arguing to this court that his particularity argument should have been reviewed de novo

because it was preserved, Terrell heavily relies on Castagnola for its proposition that “[w]hen an 

issue of law that was not argued below is implicit in another issue that was argued and is presented 

by an appeal, we may consider and resolve that implicit issue.” Castagnola, 46 N.E.3d at 655 

(citation omitted) (quotation marks omitted). The Ohio Supreme Court in Castagnola analyzed 

the substance of a defendant’s particularity argument after finding that argument implicit in the 

defendant’s generally preserved probable-cause argument. Id. at 655–56. Before the Ohio Court 

of Appeals, Terrell heavily relied on Castagnola for its substantive proclamations regarding 

particularity. Importantly, the Ohio Court of Appeals in Terrell applied the same particularity 

framework applied in Castagnola to that defendant’s preserved particularity argument. Compare 

Terrell, 95 N.E.3d at 896 with Castagnola, 46 N.E.3d at 657. The Ohio Court of Appeals 

ultimately concluded that the portions of the warrant Terrell alleged were worded too broadly were 

sufficiently particular when viewed in the context of the entirety of the warrant. Terrell, 95 N.E.3d 

at 896. 

In other words, the Ohio Court of Appeals concluded that Terrell’s particularity argument 

was based on an improper isolation of certain “catchall” provisions of the warrant that “must be 

read in conjunction with the list of particularly described items which preceded it pertaining to the 

crimes alleged.” Id. (citation omitted) (quotation marks omitted). Contrary to Terrell’s assertions, 

therefore, that court “addressed the constitutional issue of the particularity of the search warrant.” 

Terrell does not explain what more the Ohio Court of Appeals should have addressed, giving this
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court no reason to believe that he was not afforded “an opportunity for full and fair litigation of 

[his] Fourth Amendment claim[.]” Stone, 428 U.S. at 482. This is especially evident in Terrell’s 

failure to cite any precedent refuting the assertion that plain error review does not run afoul of 

Stone. See, e.g., Harmon v. McCollum, 652 F. App’x 645, 652 (10th Cir. 2016) (“Harmon argues 

that the trial court violated his Fourth Amendment rights by admitting evidence obtained during 

an illegal search of his mother’s home. . . . The [Oklahoma Court of Criminal Appeals] reviewed 

this claim for plain error . . . . [W]e conclude that court rejected Harmon’s argument on the merits 

after full and fair consideration.” (citations omitted)); Kelley v. Jackson, 353 F. Supp. 2d 887, 893 

(E.D. Mich. 2005) (“Michigan has a procedural mechanism that presents an adequate opportunity 

for a criminal defendant to raise a Fourth Amendment claim. . . . The Michigan Court of Appeals 

concluded that Petitioner had failed to properly raise the issue, reviewed the claim for plain error, 

and denied relief. Given this record, it is clear that the Michigan courts were cognizant of 

Petitioner’s Fourth Amendment claim and that he received all the process he was due. 

Accordingly, any claim concerning the validity of Petitioner’s arrest is not cognizable on habeas 

review pursuant to Stone v. Powell.”). 

Indeed, Ohio’s plain error test first requires “an error, i.e., a deviation from a legal rule.” 

State v. Barnes, 759 N.E.2d 1240, 1247 (Ohio 2002) (citations omitted). In determining whether 

an error occurred, the Ohio Court of Appeals applied substantive Fourth Amendment particularity 

law to reject Terrell’s use of isolated statements from the warrant to allege a Fourth Amendment 

violation. Terrell, 95 N.E.3d at 896. In other words, the Ohio Court of Appeals reached the merits 

of Terrell’s argument in the same way it would have under a different standard of review. Riley, 

674 F.2d at 527 (“[F]ederal habeas relief is available when a criminal defendant is not allowed to 

fully present his fourth amendment claim in the state courts because of unanticipated and 
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unforeseeable application of a procedural rule which prevents state court consideration of the 

merits of the claim.” (emphasis added)). Again, Terrell does not articulate what more the Ohio 

Court of Appeals needed to review to afford him a sufficient opportunity for a full and fair 

examination of his particularity argument. Unlike in Riley where this court found the petitioner’s 

presentation of his Fourth Amendment claim frustrated when the state court sua sponte rejected 

the petitioner’s Fourth Amendment argument on standing grounds to which the petitioner never 

had an opportunity to respond, see id. at 524, 526–27, the Ohio Court of Appeals here directly 

addressed the substance of Terrell’s briefed particularity argument in finding Terrell’s use of 

isolated statements from the warrant to be an incorrect application of the particularity doctrine.

AFFIRMED.