Fuentes v. Harpe

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 30, 2024
• Docket: 24-6094
• Status: Unpublished

Opinion

Appellate Case: 24-6094 Document: 34-1 Date Filed: 09/30/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 30, 2024 _________________________________ Christopher M. Wolpert Clerk of Court PEDRO PABLO FUENTES,

Petitioner - Appellant,

v. No. 24-6094 (D.C. No. 5:23-CV-00355-J) STEVEN HARPE, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________

Pedro Fuentes, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to challenge the district court’s order denying his 28 U.S.C. § 2254

petition. For the reasons explained below, we deny a COA and dismiss the matter.

In 2016, law enforcement investigated Fuentes for methamphetamine trafficking

and secured a GPS-tracking warrant for his car. The GPS showed the car driving to

Phoenix for a suspected drug pick up. When the car returned to Oklahoma, a law-

enforcement officer pulled Fuentes over for speeding and tailgating. The officer thought

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Fuentes’s pro se filings, “but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 24-6094 Document: 34-1 Date Filed: 09/30/2024 Page: 2

Fuentes seemed nervous, and, while the officer conducted a warrant check and wrote the

ticket, he summoned a K-9 officer to the scene. When the officer returned to give Fuentes

the ticket, he questioned Fuentes for a few minutes about drugs and ultimately told

Fuentes he was going to have the K-9 run around the vehicle. Fuentes asked for the

ticket, pointed at it, and claimed he was free to leave. But the officer placed Fuentes in

the patrol car while officers searched his vehicle. The search uncovered nearly ten pounds

of methamphetamine.

In the ensuing state criminal proceedings, Fuentes challenged the legality of the

search and seizure in a motion to suppress, arguing that the officers violated his Fourth

Amendment rights because they lacked reasonable suspicion to extend the traffic stop

beyond the time needed to issue a ticket. Following an evidentiary hearing, the trial court

denied Fuentes’s motion. Fuentes later sought reconsideration in light of new evidence,

but after conducting a second evidentiary hearing, the trial court denied reconsideration.

Following a bench trial, the trial court found Fuentes guilty of aggravated drug trafficking

and imposed a 35-year prison sentence.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed, finding no error in

the trial court’s denial of the motion to suppress. Fuentes v. State, 517 P.3d 971, 976

(Okla. Crim. App. 2021). The state district court then denied Fuentes’s pro se application

for postconviction relief, including his claim that trial and appellate counsel were

ineffective in arguing the suppression issue, and the OCCA dismissed his attempted

appeal as untimely.

2 Appellate Case: 24-6094 Document: 34-1 Date Filed: 09/30/2024 Page: 3

Fuentes then sought federal habeas relief. His operative § 2254 petition asserted

one ground for relief: that the trial court erred in denying his motion to suppress. The

magistrate judge concluded that the Supreme Court’s decision in Stone v. Powell, 428

U.S. 465 (1976), barred Fuentes’s claim. Stone held that as long as the state “provided

[the petitioner with] an opportunity for full and fair litigation of a Fourth Amendment

claim,” a federal court may not grant habeas relief on such a claim. 428 U.S. at 494. After

explaining that Stone barred Fuentes’s claim because he was able to pursue the claim

both before his trial and on appeal, the magistrate judge recommended that the district

court deny Fuentes’s § 2254 petition.

The district court overruled Fuentes’s objections and adopted the magistrate

judge’s report and recommendation in full, concluding that Fuentes “was provided an

opportunity for full and fair litigation of his Fourth Amendment claims prior to trial and

on appeal and, therefore, is not entitled to federal habeas corpus relief.” R. vol. 1, 83–84.

The district court thus denied Fuentes’s petition and denied him a COA.

Fuentes now seeks to appeal the district court’s decision. To do so, he must first

secure a COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–

36 (2003) (describing COA as “jurisdictional prerequisite”). We will grant Fuentes a

COA if “reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The district court concluded that Stone barred Fuentes’s Fourth Amendment claim

because he had an opportunity to fully and fairly litigate that claim in the state courts.

The phrase “full and fair litigation” means (1) “the procedural opportunity to raise or

3 Appellate Case: 24-6094 Document: 34-1 Date Filed: 09/30/2024 Page: 4

otherwise present a Fourth Amendment claim,” (2) a “full and fair evidentiary hearing,”

and (3) “recognition and at least colorable application of the correct Fourth Amendment

constitutional standards.” Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978);

see also United States v. Lee Vang Lor, 706 F.3d 1252, 1257–58 (10th Cir. 2013)

(explaining standards for Fourth Amendment claims brought in habeas proceedings). And

despite continuing to press the merits of his Fourth Amendment claims in his COA

application before this court, Fuentes does not dispute that the Oklahoma courts gave him

a full and fair opportunity to litigate those claims. Nor could he. He received several

procedural opportunities to present his Fourth Amendment claims, including before trial,

on direct appeal, and in a postconviction proceeding. He also received multiple

evidentiary hearings, and he does not challenge the fullness or fairness of those hearings.

And both the trial court and the OCCA recognized and colorably applied the governing

Fourth Amendment standards. See Fuentes, 517 P.3d at 975–76.

Because reasonable jurists could not find the district court’s conclusion debatable

or wrong, we deny a COA, dismiss this matter, and deny Fuentes’s pending motion for

stay as moot. Further, we conclude that Fuentes has not demonstrated the existence of a

reasoned, nonfrivolous argument on appeal, so we deny his motion to proceed in forma

pauperis. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court

Nancy L. Moritz Circuit Judge