(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-50227
Summary Calendar
MACK HARVEY COLEMAN,
Petitioner-Appellant,
VERSUS
RODNEY TAYLOR,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(92-CV-315)
(March 3, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Mack Harvey Coleman ("Coleman") was
convicted by a jury of delivery of cocaine and sentenced to fifteen
years imprisonment. He appeals the district court's decision
denying his petition for a writ of habeas corpus. We affirm the
district court's decision to deny the writ.

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FACTS AND PROCEDURAL HISTORY
In 1990, a jury in the 27th District Court of Midland County,
Texas found Coleman guilty of delivery of cocaine, and the state
trial court sentenced him to fifteen years imprisonment. His
conviction was affirmed on direct appeal by the Third Court of
Appeals of Texas. Coleman filed a state habeas petition, which the
state trial court dismissed on the merits. The Texas Court of
Criminal Appeals denied his application without written opinion.
Coleman filed a petition for a federal writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the United States District Court
for the Western District of Texas, Waco Division, raising the same
four issues as in his state habeas petition. The magistrate judge
recommended dismissing the petition on its merits. After reviewing
Coleman's objections and the record, the district court adopted the
magistrate judge's report and recommendation, and denied the writ.
After Coleman filed a notice of appeal, the district court granted
a Certificate of Probable Cause for an appeal.
STANDARD OF REVIEW
In considering a federal habeas corpus petition presented by
a petitioner in state custody, we review the federal district
court's findings of fact for clear error, but decide any issues of

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law de novo. Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992), cert. denied, 113 S. Ct. 990 (1993).
I. Is the sufficiency of Coleman's state indictment reviewable by
this court?
Coleman argues that the indictment leading to his conviction
was insufficient because it was not properly certified or
authenticated. However, when the highest court of a state has
held, expressly or implicitly, that the indictment was sufficient
under state law, the inquiry on federal habeas review is at an end.
Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985).
Coleman presented the defective indictment issue to the state court
through his state habeas petition. The state trial court rejected
the claim on the merits. Because the Texas Court of Criminal
Appeals implicitly affirmed this finding by denying Coleman's
application for habeas relief without written order, we do not
review such decision.
II. Are Coleman's Fourth Amendment claims reviewable by this
court?
Coleman argues that his arrest was illegal because the
indictment did not contain probable cause supported by an oath or
affirmation. This argument, however, is foreclosed by Stone v.
Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976),
which held that a Fourth Amendment claim may not be litigated in
federal habeas corpus proceedings if there has been an opportunity

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to present the issue fully and fairly in state court proceedings,
id. at 494. The opportunity to present a Fourth Amendment claim to
the state trial and appellate courts, whether or not that
opportunity is exercised or proves successful, constitutes an
opportunity under Stone absent an allegation that the state process
is "routinely or systematically applied in such a way as to prevent
the actual litigation of [F]ourth [A]mendment claims on their
merits." Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980).
The petitioner bears the burden of pleading and proving the denial
of the opportunity for a full and fair hearing. Davis v.
Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986).
Coleman raised his claim of an illegal arrest on state habeas
review. He has not suggested to us that the State has not provided
an opportunity for a full and fair litigation of his claim. We
need not consider Coleman's Fourth Amendment claim because he has
failed to show that he has not been provided a full and fair
opportunity to litigate the issue in state court.
III. Did the participation of military personnel in the police
investigation violate the Posse Comitatus Act?
Coleman argues that the police violated the Posse Comitatus
Act, 18 U.S.C. § 1385 (the "Act"), by using military personnel in
their investigation. The Act provides:
[W]hoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air
Force as a posse comitatus or otherwise, to execute the
laws shall be fined not more than $10,000 or imprisoned
not more than two years, or both.

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18 U.S.C. § 1385. Even if the activities in the instant case
violated the Act, the extraordinary remedy of granting habeas
relief is not warranted. In U.S. v. Wolffs, 594 F.2d 77 (5th Cir.
1979), we held that, although use of Army personnel in a criminal
investigation may have violated the Act, the application of an
exclusionary rule was unnecessary because there was no "widespread
and repeated violations" of the Act, id. at 85. Although Coleman
argues that he is not asking for an exclusion of evidence, he has
not specifically stated his desired remedy. Since evidence
obtained from a violation of the Act can be used to secure a lawful
conviction, it defies logic to afford habeas relief on the basis of
such a violation.
IV. Does the Texas Controlled Substances Act violate Article I of
the U.S. Constitution?
Coleman argues that his confinement is illegal because the
Texas Controlled Substances Act, Tex. Health & Safety Code Ann. §§
481.001-481.205 (West 1992 & Supp. 1994), violates Article I of the
U.S. Constitution. In the district court, Coleman argued that the
Texas Legislature unconstitutionally delegated power to the Health
Commissioner to define and enhance penalties under the Act, in
violation of the U.S. Constitution's requirement of separation of
powers. This argument is without merit. By its own terms, Article
I of the U.S. Constitution mandating separation of powers does not
apply to the states. See Whalen v. U.S., 445 U.S. 684, 689 n.4,
100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).

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1Coleman, by way of a pleading entitled "Petition for
Protection Order", also challenges the legality of a detention for
a parole violation and seeks "protection" therefrom. This issue
was not raised in the district court and we do not address it.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
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CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
denial of Coleman's petition for a writ of habeas corpus.1

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