Dana Ewell v. A.k. Scribner

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Sarah S. Vance, Chief District Judge for the United
States District Court for the Eastern District of Louisiana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANA EWELL,
Petitioner - Appellant,
v.
A.K. SCRIBNER ,
Respondent - Appellee.
No. 11-15388
D.C. No. 1:06-cv-00186-AWI-
MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted July 20, 2012
San Francisco, California
Before: PAEZ and BYBEE, Circuit Judges, and VANCE, Chief District Judge. **
Dana Ewell appeals the district court’s denial of his petition for habeas
corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253, and
we affirm.
FILED
AUG 01 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ewell contends that the state appellate court erred in rejecting his claim that
his Fourth Amendment rights were violated by the admission of evidence obtained
from a cloned pager. A federal court may review Fourth Amendment claims in
habeas corpus proceedings only if the state court proceeding denied the applicant
an “opportunity for full and fair litigation of a Fourth Amendment claim.” Stone v.
Powell, 428 U.S. 465, 482 (1976). Because the state courts heard and considered
Ewell’s Fourth Amendment claim, Ewell was afforded a full and fair opportunity
to litigate it. See Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005);
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); Gordon v. Duran, 895
F.2d 610, 613 (9th Cir. 1990). Accordingly, federal habeas corpus review of this
claim is precluded.
Ewell also argues that the state appellate court erred in rejecting his claim
that the State’s violations of the recording and sealing requirements of Title III, 18
U.S.C. § 2510, et seq., entitled him to Title III’s suppression remedy. See 18
U.S.C. § 2518(8)(a). Ewell’s claim lacks merit. In order for a state petitioner to
assert a statutory claim in federal habeas corpus proceedings, he must demonstrate
that the error is “‘a fundamental defect which inherently results in a complete
miscarriage of justice [or] an omission inconsistent with the rudimentary demands
of fair procedure.’” Reed v. Farley, 512 U.S. 339, 348 (1991)(alteration in
original)(quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Ewell had a full

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and fair opportunity to litigate this claim in state court, and therefore fails to
demonstrate that any violation of Title III’s sealing requirement resulted in a
miscarriage of justice, or was an omission inconsistent with the rudimentary
demands of fair procedure. See Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir.
2003). Further, Ewell fails to demonstrate that the evidence used at trial was
otherwise unreliable. See id. at 1095. Ewell’s Title III claim is therefore not
cognizable on habeas corpus review.
Finally, Ewell argues that the state appellate court erred in rejecting his
argument that the jury’s playback of a cassette tape in the jury room violated his
constitutional rights to due process, assistance of counsel, and a fair hearing. The
state court’s determination that the entire tape was admitted into evidence did not
constitute an unreasonable determination of the facts because the record showed
that the trial judge admitted the entire tape into evidence. See 28 U.S.C. §
2254(d)(2). Further, the state court’s decision rejecting this claim was neither
contrary to nor an “unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States.” See id. § 2254(d)(1);
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). There is no clearly established
Supreme Court authority that a jury’s playback of a tape that was admitted into
evidence violates a defendant’s constitutional rights. Further, Ewell fails to show
that he was prejudiced by the jury’s playing of any portion of the tape not played at

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trial. The state court’s finding that the tape was “inaudible and unintelligible” was
not an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
AFFIRMED.

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