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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kenrick Foncette,

Petitioner,

v. 

Megan Muse, et al.,

Respondents.

No. CV-18-00691-PHX-DJH

ORDER 

Pending before the Court is pro se Petitioner Kenrick Foncette’s (“Petitioner”) 

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (“Petition”) and

the Report and Recommendation (“R&R”) issued by United States Magistrate Judge 

Deborah M. Fine on March 3, 2019 (Doc. 14). Following a sound analysis, Magistrate 

Judge Fine recommended the Petition be denied and the claims therein be dismissed with 

prejudice. (Id.) The Court has reviewed the Petition (Doc. 1), Respondents’ Response to 

the Petition (Doc. 10), Petitioner’s Reply to the Response (Doc. 13), the R&R (Doc. 14), 

the arguments raised in Petitioner’s Objection to the R&R (Doc. 22), Respondents’ 

Response to Petitioner’s Objection (Doc. 23), and Petitioner’s Reply (Doc. 24). For the 

reasons discussed below, the Court overrules Petitioner’s objections and adopts Magistrate 

Judge Fine’s R&R in its entirety.

I. Background

In the R&R, the Magistrate Judge set forth an accurate summary of this case’s 

procedural background. (Doc. 14 at 2-8). The Court finds that these facts are supported 

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by the record and incorporates them here. See Thomas v. Arn, 474 U.S. 140, 149 (1985) 

(noting that the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 

636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not the 

subject of an objection”). To provide context, the Court will utilize the Arizona Court of 

Appeals’ description of Petitioner’s underlying criminal conduct and pre-trial proceedings. 

¶ 3 One night in late October 2010, Foncette and another man were 

driving a rental car in Tempe. Around 11:30 p.m., Officer Shearan of the 

Tempe Police Department stopped the car for a traffic violation. During the 

stop, Officer Shearan smelled fresh marijuana emanating from the car and 

requested the assistance of a drug-detection dog. 

¶ 4 Officer Ribotta and his police dog arrived at the traffic stop, and 

the dog alerted to the exterior of the vehicle, then to the seam of the backseat 

leading to the trunk, and then to the trunk. The officers searched the car, but 

did not find marijuana. They did, however, smell an overwhelming odor of 

fresh marijuana coming from the trunk. 

¶ 5 After the stop, Foncette and his companion were allowed to leave, 

and Officer Manchak, driving an unmarked vehicle, followed them to a hotel. 

Hotel staff buzzed the officers into the lobby, where Officer Manchak 

confirmed Foncette’s room number with the front desk clerk. Officer Ribotta 

(without being informed of Foncette’s room number) walked down a hallway 

with his dog, and the dog alerted to Foncette’s room. 

¶ 6 Officer Shearan knocked on the hotel room door several times. 

Less than one minute after the first knock, Foncette opened the door slightly, 

then, at the officers’ request, fully opened it. Officers Shearan and Manchak 

smelled an odor of fresh marijuana as soon as Foncette opened the door. 

¶ 7 In light of the dog’s alert and the odor of marijuana, the officers 

asked Foncette and his companion to step out of the room. Foncette left the 

room, but his companion, who was lying on the bed, did not respond. Officer 

Shearan and other officers entered the room to remove Foncette’s 

companion; they all left as soon as Officer Shearan walked him out of the 

room.

¶ 8 Foncette and his companion were detained in the hallway and 

spoke briefly with the officers. The officers obtained a warrant for a 

nighttime search of the hotel room, and they subsequently found plastic wrap 

and foam sealant (often used to package marijuana) together with over 20 

pounds of marijuana. Foncette was arrested and charged with possession of 

marijuana for sale and possession of drug paraphernalia. 

¶ 9 Before trial, Foncette filed two motions to suppress the evidence 

discovered in the hotel room. In the first motion, he argued that the use of the 

police dog to investigate by sniffing in the hotel hallway was an unreasonable 

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search under the Fourth Amendment, and that the late-night search pursuant 

to the warrant violated Arizona’s statutory restriction on nighttime searches. 

In the second motion, Foncette asserted—among other claims—that the 

officers’ warrantless entry into the room to remove his companion violated 

the Fourth Amendment. As relevant here, the superior court denied the 

motions. 

(Doc. 10-3 at 77). A jury convicted Petitioner on one count of Possession of Marijuana 

for Sale (Count 1), and one count of Possession of Drug Paraphernalia (Count 2). (Doc. 

10-2 at 25). In December 2013, he was sentenced to seven years of imprisonment on Count 

1 and one year of imprisonment on Count 2, the terms to run concurrently. (Id.) 

Petitioner appealed his convictions and sentences by challenging the 

constitutionality of the search of the hotel hallway and hotel room. (Doc. 10-2 at 30, 44-

63). The Arizona Court of Appeals denied Petitioner’s claims and affirmed his convictions 

and sentences. (Doc. 10-3 at 80). The Arizona Supreme Court denied review. (Id. at 82). 

Petitioner also sought post-conviction review (“PCR”). The court appointed him 

counsel even though he indicated in his initial PCR notices that he was proceeding pro se

and only wanted advisory counsel. (Id. at 88-90). The court eventually granted his request 

to proceed pro se. (Id. at 98-99). The trial court ultimately dismissed Petitioner’s PCR 

petition. (Doc. 10-4 at 74-75). In doing so, it concluded that (1) seven of the nine grounds

Petitioner raised were precluded for failure to raise them on direct appeal; (2) he was not 

entitled to relief on his second claim based on an alleged “significant change in the law”; 

and (3) his claim for ineffective assistance of counsel claim “at every state of the 

proceedings” failed on the merits. (Id.) Petitioner subsequently requested permission to 

file a successive PCR petition, which was denied. (Id. at 77-88; 112). He then filed a 

petition for review in the Arizona Court of Appeals. (Id. at 114). The Arizona Court of 

Appeals denied his relief. (Id. at 137). On March 2, 2018, Petitioner sought federal habeas 

relief with this Court. (Doc. 1). 

II. The Petition 

Petitioner raises ten grounds for his relief in his Petition (Doc. 1 at 6-15). 

Specifically, he asserts:

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(1) The U.S. Supreme Court has ruled that it is an “unconstitutional” 

search and seizure for police to turn a routine traffic stop into an ‘unrelated’ 

drug investigation involving dogs exactly like the police did to Petitioner . . 

. . The State courts did not consider this claim on the merits, denying 

Petitioner a full and fair opportunity to litigate his 4th Amend[ment] Claim. 

(2) Petitioner’s Fourth Amendment rights were violated by the two 

and a half hour long traffic stop seizure that initiated the investigation in this 

matter; Petitioner was also denied any opportunity to litigate his claim 

because the state court has provided no corrective procedures at all to redress 

this Fourth Amendment violation. 

(3) Petitioner was unlawfully seized and illegally arrested from his 

hotel room at 2:30 a.m. without a warrant, probable cause or exigent 

circumstance. This second and separate seizure by the same officers from the 

traffic stop was not addressed by the state courts. This Fourth Amendment 

claim by Petitioner has not been fully or fairly considered by the state courts. 

(4) The “knock and talk” and “protective sweep” at 2:30 a.m. of 

Petitioner’s hotel room was both unreasonable and contrary to clearly 

established Supreme Court law and the Constitution. The state court’s 

conclusion[s] on these police procedures were contrary to well established 

federal law and 28 U.S.C. § 2254(d)(1) permits relief on adjudicated state 

court claims that [are] contrary. 

(5) Petitioner was denied his Sixth Amendment right to be informed 

of the crime he is being charged with, and his rights to a speedy and public 

trial. The state’s unexplained twenty-three-month delay between Petitioner’s 

arrest and indictment violated the federal rules of criminal procedure and 

caused substantial prejudice to Petitioner’s ability to defend himself.

 

(6) The officer knowingly provided false and misleading statements 

to the magistrate in his affidavit as the basis for issuance of the search warrant 

in violation of Petitioner’s constitutional rights. The state courts neither 

considered [n]or addressed Petitioner’s factual challenge of the validity of 

the affidavit but dismissed Petitioner’s claims for procedural reasons. 

(7) Petitioner was denied his Sixth Amendment guaranteed right to 

effective assistance of counsel based on counsel’s mishandling of 

Petitioner’s Fourth Amendment claims. The state’s case against Petitioner 

originated at the traffic stop and counsel failed [to] raise Petitioner’s 

meritorious 4th Amendment claim. 

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(8) Petitioner was denied his Fifth and Sixth Amendment rights to 

effective assistance of trial and appellate counsel when counsel “entirely 

failed to subject the prosecution’s case to meaningful adversarial testing.” 

Counsel’s errors prejudiced the Petitioner and deprived him of a fair trial, a 

trial whose result is reliable. 

(9) The Arizona Court of Appeals’ decision dated April 21, 2015 in 

Petitioner’s case is contrary to the United States Supreme Court’s decision 

dated April 21, 2015 in which the Supreme Court made clear that “the police 

may not prolong detention of a car and driver beyond the time reasonabl[y] 

required to address the traffic violation.” 

(10) Petitioner’s Fourteenth Amendment right to Due Process was 

violated by the arbitrary and unfair treatment of him by the police, that began 

at the traffic stop seizure and continued up to the illegal arrest of Petitioner 

from his hotel room. The state courts have not provided Petitioner with a full 

and fair opportunity to address any of these constitutional issues herein.

(Doc. 14 at 7-8). 

III. The R&R

Upon review of the Petition, Judge Fine found that Grounds 1-4, 6, 9, and subclaims (b), (c) and (d) of Ground 10 alleged violations of Petitioner’s Fourth Amendment 

rights and were precluded from habeas review by Stone v. Powell, 428 U.S. 465, 482 

(1976). She found that Grounds 5, 7, 8, and sub-claims (a) and (e) of Ground 10 were 

procedurally defaulted. (Doc. 14 at 14). Finding no cause or justification to excuse the 

procedural defaults, she recommends dismissing the Petition with prejudice. (Id.)

Petitioner timely filed an Objection to the R&R (Doc. 22), to which Respondents 

have responded (Doc. 23) and Petitioner has replied (Doc. 24). 

IV. Standard of Review

This Court must “make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C. 

§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 

novo any part of the magistrate judge’s disposition that has been properly objected to.”); 

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). 

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Further, this Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. 

P. 72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates 

Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any 

issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989); 

see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo

review of a R&R is only required when an objection is made to the R&R”). Likewise, it 

is well-settled that “‘failure to object to a magistrate judge’s factual findings waives the 

right to challenge those findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 

2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation 

marks omitted) (footnote omitted)). 

V. Discussion

Petitioner makes several objections to the R&R. He argues that Grounds 1-4, 6, 9, 

and sub-claims (b), (c) and (d) of Ground 10 are not precluded by Stone because (1) the 

state court’s resolution of Grounds 3, 4, 6, and 10(b), (c) and (d) were “contrary to clearly 

established federal law”; and (2) Grounds 1, 2, and 9 have not been addressed by the state 

courts. He also argues that Grounds 7 and 8, alleging ineffective assistance of counsel, 

“cover all of petitioner’s other grounds” and thus should excuse his defaulted claims and 

preempt claims otherwise barred under Stone. (Doc. 22 at 12-18). The Court will address 

each objection in turn. 

A. Grounds 1-4, 6, 9, and 10(b) (c) and (d) are Precluded by Stone Because

Petitioner had a Full and Fair Opportunity to Litigate His Fourth 

Amendment Claims in State Court

Fourth Amendment search and seizure claims are not cognizable in federal habeas 

unless a Petitioner can show he did not receive the opportunity for a full and fair hearing 

on the claims before the state courts. Stone, 428 U.S. at 494 (“where the State has provided 

an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner 

may not be granted federal habeas corpus relief on the ground that evidence obtained in an 

unconstitutional search or seizure was introduced at his trial”). The Stone doctrine “is 

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grounded in the Court’s conclusion that in cases where a petitioner’s Fourth Amendment

claim has been adequately litigated in state court, enforcing the exclusionary rule through 

writs of habeas corpus would not further the deterrent and educative purposes of the rule 

to an extent sufficient to counter the negative effect such a policy would have on the 

interests of judicial efficiency, comity and federalism.” Woolery v. Arave, 8 F.3d 1325, 

1326 (9th Cir. 1993). 

Petitioner’s Grounds 1-4, 6, 9, and sub-claims (b), (c) and (d) of Ground 10 all raise 

Fourth Amendment claims and thus are precluded under Stone unless Petitioner can 

establish he did not receive an opportunity to litigate his claims in the state courts. Woolery, 

8 F.3d at 1328 (petitioner bears the burden of demonstrating that the state courts did not 

provide him with a full and fair hearing). In determining whether a habeas petitioner has 

had a full and fair opportunity to litigate his Fourth Amendment claim in state court, “[t]he 

relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether 

he did in fact do so or even whether the claim was correctly decided.” Ortiz–Sandoval v. 

Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (emphasis added); see also Gordon v. Duran, 895 

F.2d 610, 613 (9th Cir. 1990) (as long as the petitioner “had an opportunity in state court 

for ‘full and fair litigation’ of his fourth amendment claim,” habeas relief is foreclosed on 

his claim that an unconstitutional search and seizure occurred). See also Stone, 428 U.S. 

at 494 (noting that whether the state court correctly decided the Fourth Amendment claims 

is irrelevant to the query). Arizona provides criminal defendants with opportunities to 

litigate their Fourth Amendment claims in state court by filing motions to suppress 

evidence they believe was obtained through unconstitutional means. See Ariz. R. Crim. P. 

16.2. 

Petitioner first contends that the claims in “grounds #3, 4, 6, and 10. . . all involved 

state court decisions that are contrary to or involved the unreasonable application of clearly 

established federal law not address [sic] by the state courts.” (Doc. 22 at 13-14). Petitioner 

misunderstands the law. As noted above, the question under Stone is not whether the state 

courts correctly resolved the Fourth Amendment issues, but whether Petitioner was 

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provided an opportunity to litigate them. Here, Petitioner raised these claims in the state 

court and the state court resolved them, albeit not to his satisfaction. Accordingly, 

Petitioner’s objections as to the Fourth Amendment claims in Ground 3, 4, 6, and 10—

which dispute the correctness of the state court rulings on these issues—are overruled. 

These claims are precluded under Stone. 

As to Grounds 1, 2, and 9, Petitioner contends that they “have yet to be adjudicated 

or address [sic] by the state court” and thus cannot be precluded under Stone. (Doc. 22 at 

13-14). He argues that Grounds 1, 2, and 9 “are all intricately related” to the Supreme 

Court’s 2015 holding in Rodriguez v. United States, in which the Court held that “a police 

stop exceeding the time needed to handle the matter for which the stop was made violates 

the constitution’s shield against unreasonable seizures.” (Id. quoting 575 U.S. 348, 348 

(2015)). He implies that because this case was decided after his arrest and conviction, he 

was denied the opportunity to litigate the constitutionality of the traffic stop under 

Rodriguez at his trial. 

The record shows, however, that even though Petitioner did not challenge the 

constitutionality of the traffic stop via a motion to suppress at trial, he was not denied an 

opportunity to litigate the constitutionality of the stop. In August 2016, Petitioner sought 

leave to file a successive PCR Petition under Ariz. R. Crim. P. 32.2(b)1and 32.1(g)2 on the 

grounds that there had been a significant change in Fourth Amendment law since his 

conviction—namely, the decision in Rodriguez. (Doc. 10-4 at 77-88). The motion was 

fully briefed. (Doc. 10-4 at 77-112). The state court denied Petitioner’s request to file a 

successive PCR Petition. It found that Petitioner had failed to explain the reasons for not 

1 Ariz. R. Crim. P. 32.2(b) states “when a defendant raises a claim that falls under Rule 

32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must 

explain the reasons for not raising the claim in a previous notice or petition, or for not 

raising the claim in a timely manner. If the notice does not provide sufficient reasons why 

the defendant did not raise the claim in a previous notice or petition, or in a timely manner, 

the court may summarily dismiss the notice.”

2 Ariz. R. Crim. P. 32.1(g) states that a Petitioner may seek post-conviction relief if “there 

has been a significant change in the law that, if applicable to the defendant's case, would 

probably overturn the defendant’s judgment or sentence.” 

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raising the claim in his previous petition, or for not timely raising the claim, and expressly 

stated that “Rodriguez does not constitute a significant change in the law pursuant to Rule 

32.1(g).” (Doc. 10-4 at 113). On petition for review, the Arizona Court of Appeals 

summarily found the trial court had not abused its discretion in making the ruling, and

denied relief in Petitioner’s PCR proceeding. (Id. at 137). Accordingly, although the 

record does not show that Petitioner filed a motion to suppress premised on Rodriguez at 

trial (indeed, he could not have, as Rodriguez had yet to be decided), the record does not 

show that such motion to suppress evidence related to the traffic stop was unavailable to 

him. Nor does the record show that the holding in Rodriguez presented an argument that 

could not have been made at the time of his pretrial proceedings.

3

Petitioner’s claims in Grounds 1, 2, and 9 are barred in this federal habeas 

proceeding even though they were not actually litigated at trial through a suppression 

motion; indeed, whether or not Petitioner actually presented a Fourth Amendment 

challenge in the trial court is inconsequential. See Ortiz-Sandoval, 81 F.3d at 899. Because 

Petitioner had a full and fair opportunity to litigate the Fourth Amendment claims alleged 

in Grounds 1, 2, and 9 in the state courts, under the Stone doctrine, these Grounds are 

simply not cognizable here. 

B. The Ineffectiveness of Petitioner’s Counsel Does Not Excuse his 

Defaulted Claims or Preclude the Application of the Stone Doctrine

In his Petition, Petitioner generally argues that he was denied effective assistance of 

counsel when his attorney failed to investigate the circumstances of his traffic stop 

(Ground 7) and failed to “subject the prosecution’s case to meaningful adversarial testing” 

(Ground 8). The Magistrate Judge found that Petitioner had defaulted on Grounds 7 and 8

and that neither default could be excused under Martinez v. Ryan, 566 U.S. 1 (2012). 

(Doc. 14 at 15-17, 19-20). In his Objection, Petitioner argues that under Martinez, his 

attorneys’ failures should excuse his procedurally defaulted claims and preempt the 

3 As Magistrate Judge Fine recognized, Rodriguez was decided several years after 

Petitioner’s arrest and trial, and Petitioner has provided the Court with no authority that 

Rodriguez applies retroactively to cases on collateral review. (Doc. 14 at n. 3). 

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application of the Stone doctrine to his Fourth Amendment claims. (Doc. 22 at 15-18). 

The Court agrees with the Magistrate Judge that Petitioner’s default of Grounds 7 

and 8 are not excused by Martinez. An attorneys’ failure to raise a claim at the proper time 

generally does not constitute the necessary cause that excuses the resulting procedural 

default of that claim. Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“an attorney’s 

ignorance or inadvertence in a postconviction proceeding does not qualify as cause to 

excuse a procedural default”). The Supreme Court identified a narrow exception to this 

rule in Martinez. Id., 566 U.S. at 17 (holding that “a procedural default will not bar a 

federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in 

the initial-review collateral proceeding, there was no counsel or counsel in that proceeding 

was ineffective”). 

To establish ‘cause’ to overcome procedural default under Martinez, a 

petitioner must show: (1) the underlying ineffective assistance of trial 

counsel claim is ‘substantial’; (2) the petitioner was not represented or had 

ineffective counsel during the PCR proceeding; (3) the [Rule 32] proceeding 

was the initial review proceeding; and (4) state law required (or forced as a 

practical matter) the petitioner to bring the claim in the initial review 

collateral proceeding.

Dickens v. Ryan, 743 F.3d 1302, 1319 (9th Cir. 2014) (citing Trevino v. Thaler, 569 U.S. 

413, 420 (2013)). Petitioner satisfies the third and fourth prongs of this test because 

Arizona law does not permit defendants to raise ineffective assistance claims on direct 

appeal, and Petitioner failed to allege these claims in his Rule 32 petition, where state law 

required him to. However, he fails to satisfy either the first or second prong. 

Starting with the second prong, the Court finds it is disingenuous for Petitioner to 

equate the absence of counsel during his PCR proceedings with the circumstances that 

justify excusing a defaulted claim under Martinez. Despite being appointed counsel by the 

court, Petitioner twice sought permission from the PCR court to represent himself. He 

instead only asked that advisory counsel be present. Essentially, he asked to be his own 

counsel. And, it logically follows that “a defendant who elects to represent himself cannot 

thereafter complain that the quality of his own defense amounted to a denial of ‘effective 

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assistance of counsel.’” Faretta v. California, 422 U.S. 806, 834 n. 46 (1975) (citations 

and internal quotations omitted). See also McKaskle v. Wiggins, 465 U.S. 168, 184 (1984) 

(role of advisory counsel is to “explain and enforce basic rules of courtroom protocol or to 

assist the defendant in overcoming routine obstacles that stand in the way of the 

defendant’s achievement of his own clearly indicated goals”). 

As to the first prong, the Court agrees with the Magistrate Judge that Petitioner has 

failed to present an underlying substantial claim of ineffective assistance of trial counsel 

under either of these Grounds. In determining whether a petitioner has presented a 

substantial claim of ineffective assistance of counsel, the Ninth Circuit instructs district 

courts to conduct a “preliminary assessment of [the] underlying claim[s].” Smith v. Ryan, 

823 F.3d 1270, 1296 (9th Cir. 2016). A petitioner must demonstrate (1) that counsel was 

ineffective and (2) that counsel’s deficient performance prejudiced him. Strickland v. 

Washington, 466 U.S. 668, 692 (1984). “To satisfy the second prong, [Petitioner] ‘must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.’” Smith, 823 F.3d at 1296 (citing 

Strickland, 466 U.S. at 694). 

In his Reply, Petitioner argues that his ineffective assistance of counsel claims are 

substantial because: “(A) trial counsel failed to conduct any investigation into the traffic 

stop after counsel was put on notice about the traffic stop at the first suppression hearing; 

(B) trial counsel mishandled all of Petitioner’s 4th Amendment claims at trial and on direct 

appeal; (C) counsel did not interview a single witness not even the officers involved in the 

stop, search or seizures; (D) counsel failed to subject the state’s case to meaningful 

adversarial testing; and (E) counsel allowed the state court to render decisions that were 

contrary to clearly established federal law against Petitioner.” (Doc. 24 at 2). Although 

Petitioner alleges that his trial counsel failed to conduct the necessary investigation into 

the traffic stop and failed to interview witnesses involved in the stop, he fails to show what 

new information would have come of those efforts or how that information could have 

changed the outcome of his proceedings. See Porter v. McCollum, 558 U.S. 30, 38-39 

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(2009) (“To establish prejudice, [a petitioner] ‘must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different’”) (quoting Strickland, 466 U.S. at 694); see also Cooper v. Calderon, 

225 F.3d 1104, 1109 (9th Cir. 2001) (a petitioner alleging ineffective assistance of counsel 

“must affirmatively prove prejudice”). Petitioner’s contentions under sub-sections B, D, 

and E are even more unsubstantiated. The Court finds that these ineffective assistance of 

counsel claims are insubstantial, and thus cannot support an underlying claim of ineffective 

assistance of counsel as required by Martinez. 

Finally, Petitioner offers no authority to support his argument that an ineffectiveness 

of counsel claim preempts application of the Stone doctrine to substantive Fourth 

Amendment claims. This Court has been unable to find any. Consequently, Grounds 1-4, 

6, 9, and 10(b) (c) and (d) remain precluded under Stone. 

C. Evidentiary Hearing 

Petitioner asks for an evidentiary hearing. (Doc. 22 at 1). Petitioner argues that an 

evidentiary hearing is needed “to determine the merits of the factual dispute not resolved 

in the state courts as well as the decisions rendered by the state court against Petitioner that 

were contrary to, and involved an unreasonable application of clearly established federal 

law...” (Id.) Petitioner does not describe any evidence that should be considered by this 

Court. 

A court considering a habeas corpus petition is ordinarily limited to the state court 

record. See Cullen v. Pinholster, 563 U.S. 170, 180 (2011) (holding that “review under 

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the 

claim on the merits”). “In deciding whether to grant an evidentiary hearing, a federal court 

must consider whether such a hearing could enable an applicant to prove the petition’s 

factual allegations, which, if true, would entitle the applicant to federal habeas relief.” 

Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Where a petitioner does not proffer any 

evidence to be adduced at an evidentiary hearing which would prove the allegations of the 

petition, the habeas court need not grant a hearing. Chandler v. McDonough, 471 F.3d 

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1360, 1363 (11th Cir. 2006). Petitioner has not identified any evidence that would be 

adduced at an evidentiary hearing. Accordingly, Petitioner’s request is denied.

VI. Conclusion

Based on the foregoing,

IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 14) is ACCEPTED

and ADOPTED. 

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 

to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED with prejudice.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

on appeal is DENIED in part because Petitioner has not made a substantial showing of a

denial of a constitutional right and in part because dismissal of the Petition is justified by 

plain procedural bars and jurists of reason would not find the procedural rulings debatable.

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and 

enter judgment accordingly.

Dated this 26th day of March, 2021.

Honorable Diane J. Humetewa

United States District Judge

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