Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 93 C 255--Allen Sharp, Chief Judge.
Before ESCHBACH, MANION, and DIANE P. WOOD, Circuit Judges.
Mack Turentine was arrested in his home after engaging in a drug transaction with a police informant. An Indiana court convicted him of two counts of possession of cocaine with the intent to deliver and sentenced him to two concurrent 30-year terms of imprisonment. Turentine filed a petition to vacate his conviction under 28 U.S.C. sec. 2254, arguing that his arrest and the subsequent search of his home, during which police officers discovered cash and cocaine, were illegal. The district court held that Turentine's claims are barred by Stone v. Powell, 428 U.S. 465 (1976). We affirm.
Turentine complains that his conviction is tainted because he did not have a full and fair opportunity to litigate his Fourth Amendment claim before the Court of Appeals of Indiana. But as an initial matter, the State of Indiana argues that Turentine has procedurally defaulted his claims. At the time the case was argued, this Court adhered to the rule that if a petitioner under sec. 2254 does not present a claim to the highest state court, it is defaulted. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir.), cert. denied, 116 S. Ct. 130 (1995); Nutall v. Greer, 764 F.2d 462, 464 (7th Cir. 1985). The State of Indiana argues that Turentine defaulted his claims by submitting an untimely transfer petition to the Indiana Supreme Court.
In the recent case of Hogan v. McBride, 74 F.3d 144 (7th Cir. 1996), we modified the categorical rule that any sec. 2254 petitioner who fails to present a claim to the highest state court is guilty of a procedural default. Rather, we recognized that procedural default "is a question of a state's internal law." Id. at 146. Thus, a sec. 2254 petitioner's failure to present a claim to the highest state court constitutes a procedural default only if state law requires all claims to be presented to the highest state court. See id. In Hogan, we concluded that Indiana law "does not demand that parties present every claim of error in petitions for transfer [to the Indiana Supreme Court]." Id. Turentine had no duty under Indiana law to present his claims to the Indiana Supreme Court; therefore, his failure to file a timely transfer petition does not constitute a procedural default.
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court established a general rule that criminal defendants may not seek collateral review of Fourth Amendment exclusionary rule claims under sec. 2254 if they received "an opportunity for full and fair litigation of" their Fourth Amendment claims in state court. Id. at 494. The Court based its decision on a concern for judicial economy, stating that the "justification [for the exclusionary rule] becomes minimal where . . . a prisoner . . . previously has been afforded the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review." Id. at 486. The Supreme Court has not elaborated on the meaNi|g of "opportunity for full and fair litigation." *fn1
In Weber v. Murphy, 15 F.3d 691 (7th Cir.), cert. denied, 114 S. Ct. 1865 (1994), we established a test for determining when a sec. 2254 petitioner has received a full and fair opportunity to litigate a Fourth Amendment claim in state court. First, the petitioner must "clearly inform the state court of the factual basis for . . . [his] claim and . . . argue that those facts constitute a violation of . . . [his] fourth amendment rights." Id. at 694 (quoting Pierson v. O'Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, 506 U.S. 857 (1992)). If he has clearly presented the issue, we then consider whether "the state court has carefully and thoroughly analyzed the facts and . . . applied the proper constitutional case law to the facts." Id.; see also United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir. 1993); cf. Dortch v. O'Leary, 863 F.2d 1337, 1341-42 (7th Cir. 1988), cert. denied, 490 U.S. 1049 (1989). If so, the petitioner has received a full and fair opportunity to litigate his Fourth Amendment claim in state court, and federal habeas corpus review is barred by Stone.
Turentine argues that the Indiana Court of Appeals denied his Fourth Amendment claims without applying the proper constitutional case law. The officers who arrested Turentine entered his home without a warrant, and the state has not argued that any exigent circumstances justified the entry. Consequently, Turentine now argues, the entry and arrest were illegal, and the drugs and money seized from his house should not have been admitted at trial. See Payton v. New York, 445 U.S. 573, 583-87 (1980); see also New York v. Harris, 495 U.S. 14, 20 (1990). He contends that the Indiana Court of Appeals deprived him of a full and fair opportunity to litigate his Fourth Amendment claims because it did not discuss the Payton requirement that the home search be supported by either a warrant or exigent circumstances.
We do not reach this issue, however, because Turentine has not satisfied the threshold requirement of clearly presenting his Fourth Amendment claims to the state courts. In this appeal, Turentine emphasizes the warrantless entry into the home and the subsequent search. But before the Indiana Court of Appeals his argument concentrated almost exclusively on his arrest without probable cause. He did not even cite Payton (the only indirect reference was to an Indiana decision that cited Payton: Mowrer v. State, 447 N.E.2d 1129, 1131-32 (Ind. App. 1983)). *fn2 The brief attached no significance to the fact that Turentine was arrested in his home, which, of course, is the crucial issue under Payton. Turentine's present counsel even acknowledged at oral argument that the Payton issue was not the focus of the appeal to the Indiana Court of Appeals. While one could argue that the Payton issue was at least remotely presented to the Indiana Court of Appeals, *fn3 the issue certainly was not "clearly presented" as required by Weber. It ...