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Newman v. Wengler

United States District Court, Ninth Circuit

November 27, 2013

STEPHEN D. NEWMAN, Petitioner,


LARRY M. BOYLE, Magistrate Judge.

Pending before the Court is Petitioner Stephen D. Newman's Petition for Writ of Habeas Corpus (Dkt. 1). Respondent has filed an Answer and Brief in Support of Dismissal (Dkt. 14). Petitioner has filed a Reply (Dkt. 17), and Respondent has filed a Sur-reply (Dkt. 18). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on June 28, 2012. ( See Dkt. 13.)

The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order dismissing the Petition with prejudice on the grounds that Petitioner's Fourth Amendment claim is not cognizable in federal habeas proceedings because he received a full and fair opportunity to litigate that claim in state court. See Stone v. Powell, 428 U.S. 465, 494 (1976).


After a jury trial in Idaho state court in July of 2008, Petitioner was convicted of one count of attempted rape. The facts surrounding the initial detention of Petitioner, the search of his vehicle, and the evidence obtained and presented at trial are not in dispute.

1. Petitioner's Arrest and the Search of His Vehicle

The following recitation is taken primarily from Petitioner's Memorandum of Points and Authorities in support of his Petition:

On July 27, 2007, Boise resident Gretchan Heller responded to an ad for an iPod in the "free" section of Craigslist. A reply at around 3:00 p.m. that day from a person calling himself Terry explained that the iPod was his wife's, that she had cheated on him, and that it was therefore his right to give it away. At about 10:00 p.m., Ms. Heller received another message from "Terry" stating that, if she were still interested in the free iPod, he would send directions to its location. In a follow-up message, he told her to go to a park at Eagle and McMillan. She was told that she would find a Porta Potty there and that the iPod would be inside, on top of a towel holder.
Ms. Heller believed that something suspicious was going on. She and her husband traveled to the area of the park to see if there was a vehicle waiting and, indeed, she saw one in the park. At that point, the two of them went to an Albertson's parking lot near the park and called the police.
Boise Officer Cory Bammert responded to the Albertson's lot at 11:52 p.m. A backup unit of Officers Abercrombie and Coltrin arrived shortly thereafter. After hearing from Ms. Heller, Bammert and the backup officers went into the park and observed a maroon SUV with its lights off. Bammert checked inside a nearby Porta Potty, but found no iPod.
Officer Bammert then did a passenger-side approach to the SUV. The SUV had tinted windows and Bammert did not believe it was occupied. He, nonetheless, knocked on the window. The driver, later identified as petitioner, rolled down the window. Petitioner stated that he had been parked for an hour and a half working on his computer. Although it was a hot July night, he was wearing a knit cap. Bammert saw a pair of ski gloves on the passenger seat, which petitioner said had been there a while.
After a short conversation, Officer Bammert told petitioner to step out of the car in order to place him under arrest for being in the park after hours, in violation of Boise Municipal Code §§ 13-03-05 to 13-03-10. Petitioner was ordered out of the car and placed under arrest solely for that offense. Bammert was quite candid about this, explicitly admitting that he did not arrest petitioner based on probable cause to believe that petitioner had committed an attempted rape or kidnaping or any such crime. Indeed, as Bammert's testimony would indicate, he personally did not believe he had such probable cause.[1]
Officer Bammert testified that petitioner was under arrest from the moment he left his vehicle. At that point, Officer Abercrombie was at the rear of the vehicle and Officer Coltrin was on the driver's side. On his way to meet petitioner by the driver's door, Bammert met Abercrombie at the rear of the SUV, where Abercrombie told him that petitioner was sticking something behind the seat. Bammert then observed petitioner placing something between the seats with his right hand, although he did not testify that he identified the item. When he reached petitioner on the driver's side, Bammert asked what he had placed between the seats. Petitioner did not say at first.
Petitioner exited the car. Bammert handcuffed him and sat him on the curb. Having secured him away from his vehicle on a charge of violating the Boise Municipal Code provision, and not before, two of the officers searched the vehicle incident to that arrest. The third watched over petitioner as the other officers conducted their search.
Having placed petitioner under arrest, handcuffed him, and secured him in a location away from the SUV, the two officers entered the vehicle. They found a kitchen knife under the ski gloves that were located on the front passenger seat. Officer Bammert stated that he had not seen the knife until the search incident to arrest. The officers seized a pellet gun located behind the driver's seat. It was not loaded. The officers also observed that the back seat of the SUV was down, where they found a man's belt.
In addition, the officers found and seized the laptop computer, which petitioner had told them he worked on before his arrest. The laptop contained numerous electronic files that the prosecution ultimately introduced into evidence at trial to tie petitioner to the free iPod ad, and to support its claim that he had intended to commit a rape on July 27, 2007. Again, Officer Bammert was quite candid about his thinking at the time of the seizure, admitting that he believed it might contain evidence relating to a crime other than the predicate crime for the arrest, such as attempted kidnaping or attempted rape, which he then lacked probable cause to believe petitioner had committed. He agreed that he seized the computer "so that it could be looked at to see whether it had evidentiary value."
In addition to the pellet gun, laptop, belt, gloves, and knife, the officers also seized pieces of paper with notations on them.

(Pet. and Memo., Dkt. 1, at 19-21)[2] (internal citations and footnotes omitted).

2. The Evidence Obtained from the SUV

A later search of Petitioner's computer (executed pursuant to a warrant), as well as the handwritten notes found in Petitioner's SUV, revealed much about Petitioner's activities that day, as well as his intent with respect to Ms. Heller that night:

[There were] two movies downloaded from the seized computer depicting petitioner and a woman engaged in sex acts on what appeared to be two separate occasions. During the defense case [at trial], the woman depicted in the video as Ruby testified that her participation in the role-playing was entirely consensual. In the video, petitioner and Ruby role-play long rape scenes. Petitioner is seen and heard berating, beating, and (seemingly) forcibly penetrating Ruby. In addition to the sexual acts, petitioner threatens Ruby with a knife.
In e-mails between petitioner and the woman he calls Ruby, he told her that he would love to rape her and asked how rough he could get with her. In another, he described a fantasy in which he rapes a college student whose car has broken down.
A detective described commercially produced videos that were located on the laptop, ... [including] a video in which a woman walks into a bike repair shop and two men sexually assault her in various ways. That video had an identifier at the bottom of the screen:
[On the computer, police discovered] various e-mails petitioner apparently sent from his laptop and Internet searches he conducted during the twenty-four hours prior to his arrest....
In the early hours of July 27, 2007, "Sara" answered from petitioner's computer a Craigslist ad for someone looking for a female roommate. In the e-mail, Sara asked whether she could come see the apartment. Sara also sent an e-mail to another woman looking for a roommate. Later, Sara inquired about a prom dress that was listed for sale. Next, Sara sent a message asking whether a wedding dress that had been listed was still available. Sara sent another message regarding yet another wedding dress a short time later.
A few hours later, shortly before 9:00 a.m. on July 27, 2007, petitioner checked responses to an ad he had posted regarding free therapy. He then sent another message checking on the availability of one of the wedding dresses. He then accessed one of the videos on the laptop. At around 9:30 a.m., Craigslist sent him a message confirming that his iPod listing had been posted. In some of the correspondence relating to the iPod, petitioner used an e-mail address at "anonymous, " which would make it difficult for the government to locate the person attached to the address.
A person named Amanda responded to the iPod ad and, shortly thereafter, petitioner conducted a search on Myspace for [her] e-mail address.... Ms. Heller responded to the iPod at about 3:30 p.m. Petitioner also conducted a search for the name "Carly Bovee, " which was the name of one of the people selling a wedding dress. Later that day, he checked Amanda's profile.
Amanda e-mailed at 4:48 p.m. to ask whether she could pick up the free iPod. Petitioner conducted additional people searches between 5:48 and 6:19 p.m. At 6:18 p.m., he searched for an address....
Petitioner sent an e-mail to Ms. Heller at 10:03 p.m. in which he said, "I know it's late, I'll wait 15 minutes." He sent a similar message to Amanda a short time later. At 10:06 p.m., he sent Ms. Heller a message saying no one had claimed the iPod. She wrote back to say that she would love to have it. He then conducted searches to try to identify her, finding pictures of her on Myspace. He eventually sent her the e-mail, ultimately provided by her to the police, which gave directions to the park and told her where she could find the iPod.
Police also identified various Google searches conducted on petitioner's computer in the days before his arrest, which included the following: Boise student housing (which corresponded to one of the ads for a roommate), the definition of sexual assault, the average sentence for rape, rapist, details of rape, as ...

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