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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Marco A. Salazar, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02083-PHX-DLR (JZB)

REPORT AND 

RECOMMENDATION 

 

 TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT 

JUDGE: 

 Petitioner Marco A. Salazar has filed a pro se Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254. (Doc. 1.) 

I. SUMMARY OF CONCLUSION 

After screening, Petitioner has three remaining claims for relief in his timely 

Petition. All of three of these claims relate to the traffic stop prior to his arrest. 

Petitioner pleaded guilty, so his claims are waived. Petitioner’s claims are also not 

cognizable on habeas review. Therefore, the Court will recommend that the Petition be 

denied and dismissed with prejudice. 

II. BACKGROUND

a. Guilty Plea and Sentencing

 On June 10, 2013, Petitioner pleaded guilty to Solicitation of Dangerous Drugs for 

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Sale, a class 4 felony. (Doc. 12-1, Ex. D, at 23.) Petitioner pleaded guilty in relation to a 

traffic stop where he was found with 9.8 grams of methamphetamine. (Doc. 12-1, Ex. A, 

at 2.)1

 Petitioner was on parole at the time of the offense, and the State alleged Petitioner 

had five prior felony convictions. (Id.) On July 15, 2013, Petitioner was sentenced to a 

two-year term of probation. (Doc. 12-1, Ex. B, at 12.) 

 On the date of sentencing, Petitioner signed a “Notice of Rights of Review after 

Conviction.” (Doc. 12-1, Ex. E, at 25.) Petitioner did not file a Notice of Appeal or 

Notice of Post-Conviction Relief. (Doc. 1 at 3-5.) 

b. Revocation of Probation 

 On June 4, 2014, a Petition to Revoke Probation was filed in Petitioner’s case. 

(Doc. 12-1, Ex. C, at 15.) On October 27, 2014, the trial court found Petitioner 

knowingly, intelligently, and voluntarily waived his right to a revocation hearing and 

sentenced Petitioner to two years of imprisonment for violating the terms of his 

probation. (Doc. 12-1, Ex. C, at 15.) The court ordered the sentence run consecutively to 

a term of imprisonment imposed upon Petitioner in a Maricopa County case. (Id.) 

c. No Post-Conviction Relief Proceedings

 Petitioner did not file an appeal or notice of post-conviction relief related to his 

probation violation proceedings. (Doc. 1 at 3-5.) 

d. Petitioner’s Federal Habeas Petition 

 On October 16, 2015, Petitioner filed this habeas Petition. (Doc. 1.) On December 

21, 2015, Respondents filed a Limited Answer to the Petition. (Doc. 12.) On January 25, 

2016, Petitioner filed a Reply. (Doc. 15.) Petitioner raised four grounds for relief: 

1. Petitioner “was subjected to an illegal search and seizure, in 

violation of the Fourth Amendment”; 

2. “[I]llegally obtained evidence was presented to the grand jury, in 

violation of the Fourth Amendment.” 

 

1

 A summary of the offense is contained in the Presentence Report. (Doc. 12-1, Ex. A, at 2.) 

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3. A violation of Article II of the Arizona Constitution. 

4. “[T]here was a violation of the Due Process Clause of the Fourteenth 

Amendment because [Petitioner] was sentenced to probation on 

illegally obtained evidence.” 

 (Doc. 7 at 2.) Ground Three was dismissed by the Court because it did not allege a 

federal claim. (Doc. 7 at 3.) 

III. THE PETITION

The writ of habeas corpus affords relief to persons in custody pursuant to the 

judgment of a state court in violation of the Constitution, laws, or treaties of the United 

States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by 

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. 

The Petition is timely. 

IV. DISCUSSION

a. Waiver of Claims Pursuant to Guilty Plea

Grounds One, Two, and Four all assert a violation of Petitioner’s rights that 

allegedly occurred at the time of his traffic stop. (Doc. 1 at 6-9.) Petitioner’s claims 

allege a violation of his rights based upon an “illegal search and seizure” (Id. at 6), “no 

probable cause to search the defendant’s vehicle” (Id. at 7), and “no warrant, no probable 

cause in Defendant’s case” (Id. at 9). Petitioner waived his right to bring these claims 

when he pleaded guilty to one count of Solicitation of Dangerous Drugs for Sale. (Doc. 

12-1, Ex. D, at 23.) An unconditional guilty plea “cures all antecedent constitutional 

defects.” United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997). “When a criminal 

defendant has solemnly admitted in open court that he is in fact guilty of the offense with 

which he is charged, he may not thereafter raise independent claims relating to the 

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 

Tollett v. Henderson, 411 U.S. 258, 267 (1973). “He may only attack the voluntary and 

intelligent character of the guilty plea.” Id. 

 Here, Petitioner pleaded guilty, and the court found Petitioner “knowingly, 

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intelligently and voluntarily waived” his applicable jury trial rights and pleaded guilty. 

(Doc. 12-1, Ex. B, at 11.) Petitioner does not argue otherwise. Petitioner’s claims are 

waived. See United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (a guilty plea 

generally waives all claims of a constitutional nature occurring before the plea); Haring 

v. Prosise, 462 U.S. 306, 321 (1983) (“[W]hen a defendant is convicted pursuant to his 

guilty plea rather than a trial, the validity of that conviction cannot be affected by an 

alleged Fourth Amendment violation because the conviction does not rest in any way on 

the evidence that may have been improperly seized.”); Ortberg v. Moody, 961 F.2d 135, 

136–38 (9th Cir. 1992) (petitioner’s guilty plea barred habeas consideration of claims, 

which included claim of an unlawful search). 

b. Petitioner’s claims are not cognizable.

 Petitioner’s claims are also not cognizable. A Fourth Amendment claim is not 

cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity 

to litigate the claim in state court. Under Stone v. Powell, 428 U.S. 465, 481 (1976), 

“where the State has provided an opportunity for full and fair litigation of a Fourth 

Amendment claim,” federal habeas corpus relief will not lie for a claim that evidence 

recovered through an illegal search or seizure, even if that evidence was introduced at 

trial. 

 Here, Petitioner had the opportunity to litigate his Fourth Amendment issue, both 

in the trial court and on post-conviction review. (Doc. 7-1, Ex. F, at 29.) Petitioner did 

not litigate his claims in the trial court, and instead pleaded guilty with numerous obvious 

benefits. The State dismissed an allegation of Petitioner’s five prior convictions (Doc. 12-

1, Ex. D, at 12), and Petitioner’s plea offered him the opportunity of a probation sentence 

(Doc. 12-1, Ex. D, at 20). Petitioner received a two-year sentence of probation, which he 

chose not to contest through post-conviction review.2

 Petitioner signed a form 

acknowledging his rights to post-conviction review. (Doc. 12-1, Ex. E, at 25.) Petitioner 

 

2

 Petitioner raises these challenges to his traffic stop after his term of probation was revoked and he was sentenced to a two-year term of imprisonment. 

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had an opportunity for a full and fair litigation of his Fourth Amendment claim. See 

Ortiz–Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“The 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.”) (citations omitted). 

 The Court finds Petitioner’s claims in Grounds One, Two, and Four are not 

cognizable on habeas review.3

CONCLUSION

 The record is sufficiently developed and the Court does not find that an 

evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 

F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that 

Petitioner’s claims are timely, but waived. Further, these claims are non-cognizable on 

habeas review. The Court will therefore recommend that the Petition for Writ of Habeas 

Corpus (Doc. 1) be denied and dismissed with prejudice. 

IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH 

PREJUDICE. 

 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 

leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the 

Petition is justified by a plain procedural bar and reasonable jurists would not find the 

ruling debatable, and because Petitioner has not made a substantial showing of the denial 

of a constitutional right. 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the district court’s judgment. The 

parties shall have 14 days from the date of service of a copy of this Report and 

 

3

 Respondents also argue Petitioner’s claims are procedurally defaulted. The Court 

elects to bypass the issue of procedural default in the interest of judicial economy. See 

Lambrix v. Singletary, 520 U.S. 518, 524–25 (1997) (explaining that the court may bypass the procedural default issue in the interest of judicial economy when the merits are clear but the procedural default issues are not). 

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Recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days 

within which to file a response to the objections. 

 Failure to timely file objections to the Magistrate Judge’s Report and 

Recommendation may result in the acceptance of the Report and Recommendation by the 

district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the 

Magistrate Judge will be considered a waiver of a party’s right to appellate review of the 

findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report 

and Recommendation. See Fed. R. Civ. P. 72. 

 Dated this 29th day of April, 2016. 

Honorable John Z. Boyle 

United States Magistrate Judge

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