                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 13a0265p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                               X
                                                -
 JONATHAN JOSEPH GOOD,
                                                -
                     Petitioner-Appellant,
                                                -
                                                -
                                                    No. 12-1428
         v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 MARY BERGHUIS, Warden,
                                                -
                                               N
                 Appeal from the United States District Court
               for the Eastern District of Michigan at Bay City.
          No. 1:12-cv-10243—Thomas L. Ludington, District Judge.
                        Decided and Filed: September 6, 2013
  Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; HOOD, District
                                Judge.*
                                   _________________
                                        COUNSEL
ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cincinnati, Ohio, for Appellant. David H. Goodkin, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                   _________________
                                       OPINION
                                   _________________
        SUTTON, Circuit Judge. Currently serving a state sentence in a Michigan
prison, Jonathan Good claims he was convicted based on evidence obtained in violation
of the Fourth (and Fourteenth) Amendment. The state trial court denied his motion to
suppress without holding an evidentiary hearing, and a state appellate court denied his
resulting appeal “for lack of merit in the grounds presented.” People v. Good, No.
302063 (Mich. Ct. App. Feb. 22, 2011). Good asked for a federal writ of habeas corpus,


        *
        The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                              1
No. 12-1428         Good v. Berghuis                                                 Page 2


the federal district court declined, and a certificate of appealability issued by one of our
colleagues brings the case before us. Good contends that (1) the state court’s admission
of the evidence violated the exclusionary rule and (2) its failure to hold an evidentiary
hearing violated the Due Process Clause. We affirm.

        Stone v. Powell in the main prohibits federal habeas corpus review of a state
prisoner’s Fourth Amendment claim. 428 U.S. 465, 486 (1976). Two explanations
supported the decision. One, the key purpose of federal habeas corpus is to free innocent
prisoners. But whether an investigation violated the Fourth Amendment has no bearing
on whether the defendant is guilty. Id. at 490. Two, exclusion is a prudential deterrent
prescribed by the courts, not a personal right guaranteed by the Constitution. Any
deterrence produced by an additional layer of habeas review is small, but the cost of
undoing final convictions is great. Id. at 493.

        This prohibition on federal habeas review of exclusionary rule claims applies
only to prisoners who received “the opportunity for full and fair consideration” of their
claims in state court. Id. at 486. Good points out that the State never gave him an
evidentiary hearing on his suppression motion. It follows, he says, that he did not get
an “opportunity for full and fair consideration” of his Fourth Amendment claim and that
he may raise the claim here.

        Just what kind of “opportunity” Powell contemplates has been the subject of
debate. Our court has been of two (or three) minds about the point. In the first case,
Bradley v. Cowan, the trial court “abruptly denied [the suppression motion] without
hearing.” 561 F.2d 1213, 1215 (6th Cir. 1977). The panel splintered over whether the
state court satisfied the opportunity requirement, with two of the three judges concluding
that Powell precluded review. See id. at 1215, 1217 (Edwards, J.) (concluding that the
lack of a state court hearing makes federal collateral review available but finding any
error harmless); id. at 1217–18 (Phillips, C.J.) (concluding that Powell precluded
review); id. at 1218 (Weick, J.) (concluding that Powell precluded review and finding
any error at any rate harmless). In Moore v. Cowan, reported in F.2d before Bradley but
decided two days after it, the habeas corpus petitioner complained that instead of
No. 12-1428         Good v. Berghuis                                                 Page 3


reviewing the merits of his Fourth Amendment claim, the state appellate court affirmed
on harmless-error grounds. We rejected this argument, subscribing to what has become
the majority rule in the circuits—that opportunity means opportunity—and concluding
that the state court need do no more “than take cognizance of the constitutional claim
and render a decision in light thereof.” 560 F.2d 1298, 1302 (6th Cir. 1977). In Riley
v. Gray, the state appellate court refused to consider the defendant’s suppression appeal;
it announced a novel procedural rule requiring the defendant to have affirmatively
demonstrated his standing to challenge the search in the trial court record—a
requirement that the defendant had not met. 674 F.2d 522, 527 (6th Cir. 1982). We held
that this “unanticipated and unforeseeable” procedural rule deprived the defendant of a
fair opportunity to present his claim to the appellate court. Id. at 526–27. But then we
added the following unnecessary and unreasoned remark: “[Ohio’s rules generally]
provide an adequate procedural mechanism for the litigation of fourth-amendment claims
because the state affords a litigant an opportunity to raise his claims in a fact-finding
hearing and on direct appeal of an unfavorable decision.” Id. at 526 (emphasis added).
This statement was dictum; Riley is a case about the opportunity at the outset to put the
claim before the court, not the subsequent opportunity to get an evidentiary hearing.

        Most of the other federal appellate courts have focused on whether the state
courts offered the prisoner a procedure for presenting the Fourth Amendment claim.
See, e.g., Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (“[R]eview of fourth
amendment claims in habeas petitions [may] be undertaken in only one of two instances:
(a) if the state has provided no corrective procedures at all to redress the alleged fourth
amendment violations; or (b) if the state has provided a corrective mechanism, but the
defendant was precluded from using that mechanism . . . .”); Marshall v. Hendricks,
307 F.3d 36, 82 (3d Cir. 2002) (“[T]here may be instances in which a full and fair
opportunity to litigate was denied to a habeas petitioner, but this is not one of them. This
is not a case where a structural defect in the system itself prevented [the petitioner’s]
claim from being heard.”); Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978)
(“[Powell asks only] whether . . . the petitioner was afforded an opportunity to raise his
Fourth Amendment claims under the then existing state practice.”); Willett v. Lockhart,
No. 12-1428         Good v. Berghuis                                                  Page 4


37 F.3d 1265, 1273 (8th Cir. 1994) (en banc) (“[A] Fourth Amendment claim is Stone-
barred, and thus unreviewable by a federal habeas court, unless either the state provided
no procedure by which the prisoner could raise his Fourth Amendment claim, or the
prisoner was foreclosed from using that procedure . . . .”).

        Some courts have focused on the adequacy of the procedure, sometimes even the
application of the procedure, used by the court to resolve the claim. See, e.g., Anderson
v. Calderon, 232 F.3d 1053, 1068 (9th Cir. 2000) (“[W]e are persuaded on these facts
and circumstances that this kind of review falls short of the quality of litigation
opportunity described in Stone.”); Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir.
1978) (“‘Opportunity for full and fair consideration’ includes, but is not limited to, the
procedural opportunity to raise or otherwise present a Fourth Amendment claim. It also
includes [a] full and fair evidentiary hearing . . . .”) (footnote omitted); Tukes v. Dugger,
911 F.2d 508, 514 (11th Cir. 1990) (“The trial court’s failure to make explicit findings
on matters essential to the fourth amendment issue, combined with the fact that the state
appellate court issued only a summary affirmance, precludes a conclusion . . . that . . .
[there is] a Stone v. Powell bar to our review of the claim.”).

        Consistent with Moore and with two of the three votes in Bradley, we make clear
that the Powell “opportunity for full and fair consideration” means an available avenue
for the prisoner to present his claim to the state courts, not an inquiry into the adequacy
of the procedure actually used to resolve that particular claim. First, that is what Powell
said: It focused on the opportunity for fair consideration presented by the state courts,
not the procedure used in a given case to address the specific argument of a given
defendant. In the absence of a sham proceeding, there is no need to ask whether the state
court conducted an evidentiary hearing or to inquire otherwise into the rigor of the state
judiciary’s procedures for resolving the claim.

        Second, this approach accords with traditional federalism and comity
principles—considerations that animated Stone v. Powell in the first instance and
considerations that take center stage whenever evaluating the scope of federal habeas
corpus review. See generally Coleman v. Thompson, 501 U.S. 722 (1991). Looking into
No. 12-1428         Good v. Berghuis                                                  Page 5


the adequacy of state opportunities to raise federal claims is a familiar exercise; hence
the “adequate” in the doctrine of independent and adequate procedural grounds. See,
e.g., Lee v. Kemna, 534 U.S. 362 (2002). But it would be an unusual intrusion for
federal courts to second-guess state procedures for resolving motions once they have
been presented. States are independent sovereigns, and the federal government generally
speaking should respect their choices about how to adjudicate disputes.

        All of that explains why Powell tells us not to “assume that there [is] a general
lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of
the several States.” 428 U.S. at 493 n.35. We must instead presume that, once a federal
claim comes before a state court, the state judge will use a fair procedure to achieve a
just resolution of the claim—resolving some motions with neither an evidentiary hearing
nor an oral argument, some with an oral argument alone, some with both.

        Third, a different conclusion would be impractical and in the end would raise
more questions than answers. It is not feasible to prescribe a uniform set of procedures
for every suppression dispute. Take the type of procedure demanded in this case: an
evidentiary hearing. The exclusionary rule results in “tens of thousands of contested
suppression motions each year,” McDonald v. City of Chicago, 130 S. Ct. 3020, 3047
(2010) (plurality opinion), and if every one of them prompted a full evidentiary hearing
the wheels of justice would jam. Nor is it reasonable to think that an evidentiary hearing
is warranted in every case. In some cases, the defendant will not allege a cognizable
Fourth Amendment violation. In others, an exception to the exclusionary rule, say for
inevitable discovery or for a good faith search, will plainly bring the evidence in. In
others, the relevant facts already may be in the record, making an evidentiary hearing
unnecessary. In still others, it will be obvious that the suppression motion is frivolous,
or that it was made solely for the purpose of delaying the case. Just as the Supreme
Court has presumed that a state appellate court normally will have a good reason to deny
an appeal summarily, see Harrington v. Richter, 131 S. Ct. 770, 784 (2011), so too may
we presume that a state trial court often will have a good reason to deny a suppression
motion summarily.
No. 12-1428         Good v. Berghuis                                                 Page 6


        Fourth, a contrary approach would collapse the hearing inquiry into the merits
inquiry. The right to a hearing would turn on how strong the underlying exclusionary
claim was, prompting an inquiry of the sort Stone v. Powell prohibited in order to
determine whether Stone v. Powell applied. Our approach, and the majority rule, asks
a more basic and readily administrable question: Did the state courts permit the
defendant to raise the claim or not?

        Applying our test to Good’s case is straightforward. Good could, indeed did,
present his suppression motion to the state trial court, and the trial court rejected it. He
presented it again to the state appellate court, and the appellate court rejected it once
more. That suffices to preclude review of the claim through a habeas corpus petition
under Stone v. Powell.

        Good separately argues that the state court’s failure to accord him an evidentiary
hearing violated his rights under the Due Process Clause. We need not decide whether
Stone v. Powell also covers Fifth Amendment objections to procedures for resolving
suppression motions. Because the Michigan Court of Appeals has already rejected
Good’s due process argument on the merits, Good may prevail only if he shows that this
decision was contrary to or unreasonably applied the National Supreme Court’s
precedents. 28 U.S.C. § 2254(d)(1). Good cannot meet this burden. He identifies no
Supreme Court holding establishing that the Due Process Clause ever requires an
evidentiary hearing on a Fourth Amendment suppression motion, let alone one
establishing a hearing was required under the circumstances of his case.

        Good’s best case is Jackson v. Denno, but even that is far afield. 378 U.S. 368
(1964). Jackson held that a defendant sometimes has a right to an actual hearing on a
motion to suppress an allegedly involuntary confession. But evidence obtained in
violation of the Fourth Amendment is different from confessions obtained in violation
of the Fifth. For one thing, a defendant has a personal constitutional right to the
exclusion of an involuntary confession; the exclusion of the fruits of unlawful searches
or seizures by contrast is merely a prudential judicial doctrine. For another, a confession
is unreliable if it is involuntary, but tangible evidence remains just as reliable even when
No. 12-1428       Good v. Berghuis                                             Page 7


discovered in violation of the Fourth Amendment. In light of these distinctions, fair-
minded jurists could reasonably conclude that Jackson’s holding says nothing about
whether Good should have received an evidentiary hearing on his Fourth Amendment
motion.

       For these reasons, we affirm.
