                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 22, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT




    RICHARD SANCHEZ,

                Petitioner-Appellant,

    v.                                                    No. 08-2049
                                              (D.C. No. 6:07-CV-00067-MV-LCS)
    ROBERT ULIBARRI, Warden;                               (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


         Richard Sanchez appeals the denial of his petition for federal habeas relief

pursuant to 28 U.S.C. § 2254, claiming his Fourth Amendment rights were

violated and that he was denied effective assistance of counsel. We granted a

certificate of appealability (COA) on both claims and now affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I

      This case began when Captain Robert Jones of the Dona Ana County, New

Mexico Sheriff’s Department observed Mr. Sanchez in a convenience store. 1

Captain Jones was off-duty and in plain clothes, but he noticed that Mr. Sanchez

was fumbling his belongings and smelled of alcohol. As he watched Mr. Sanchez

leave the store, he saw that Mr. Sanchez “was unsteady on his feet,” swaying as

he walked slowly towards his truck “in a zigzag pattern.” Tr. 111. Captain Jones

apparently did not follow Mr. Sanchez, but after driving away from the

convenience store, he realized that Mr. Sanchez had pulled in front of him on the

same road. He then watched as Mr. Sanchez drove over the center line of the

roadway towards oncoming traffic, weaving for some two or three blocks.

Because Captain Jones was in an unmarked vehicle, he radioed for a marked

police cruiser to stop Mr. Sanchez. But when Mr. Sanchez nearly collided with

another vehicle head-on, forcing the other vehicle completely off the roadway,

Captain Jones activated his emergency police lights and siren to initiate the stop

on his own. Rather than pull-over, however, Mr. Sanchez accelerated.

      The pursuit continued until Mr. Sanchez pulled into a driveway and both

men got out of their vehicles. Captain Jones showed his badge and ordered

Mr. Sanchez back into his truck, but Mr. Sanchez refused, stating that he could


1
       This factual background is based on evidence presented at Mr. Sanchez’s
trial. The trial transcript is cited herein as “Tr. __”.

                                        -2-
not be arrested on his own property. Mr. Sanchez proceeded to walk towards the

house while Captain Jones followed, repeatedly but unsuccessfully ordering

Mr. Sanchez to stop. When Mr. Sanchez finally entered the house, Captain Jones

“stepped in with him.” Tr. 116. The two men briefly struggled just inside the

doorway, until Captain Jones dragged Mr. Sanchez outside and arrested him. He

was then transported to the sheriff’s department where he refused to submit to a

breath alcohol test.

      Mr. Sanchez was charged with: (1) aggravated driving while intoxicated;

(2) resisting, evading, or obstructing an officer; (3) driving while license

suspended or revoked; and (4) failure to maintain traffic lane. He went to trial

and before a jury flatly denied being at the convenience store, being drunk, seeing

any police lights, or hearing any siren. He told the jury instead that just after he

had arrived home that day, a man burst through his door and tackled him.

Believing the man to be a prowler, Mr. Sanchez fought back, but was dragged

outside where for the first time he saw several police cars. The jury apparently

rejected this testimony, however, because he was convicted on all four counts.

The state subsequently filed a supplemental information, to which Mr. Sanchez

admitted, establishing that he was a repeat offender of driving while intoxicated,

having been convicted of the offense on three prior occasions.

      After Mr. Sanchez was convicted, his attorney failed to file a notice of

appeal. Mr. Sanchez lodged a pro se petition for post-conviction relief in the trial

                                          -3-
court, arguing, among other things, that he had been arrested in his home without

a warrant and that his attorney had been ineffective in refusing to challenge the

warrantless arrest. The court dismissed the petition and directed defense counsel

to file an untimely notice of appeal. In Mr. Sanchez’s counseled appeal, he again

raised his Fourth and Sixth Amendment claims.

      The New Mexico Court of Appeals affirmed Mr. Sanchez’s convictions,

first finding that the warrantless arrest was reasonable because it was based on

both probable cause and exigent circumstances. The court reasoned that Captain

Jones had observed Mr. Sanchez driving erratically and attempted to stop him

with his lights and siren, but Mr. Sanchez ignored these efforts. Further, the court

found that it was perfectly plausible that defense counsel had declined to

challenge the warrantless arrest because the claim was unsubstantiated by the

record, and thus defense counsel was not ineffective in failing to raise it.

Mr. Sanchez petitioned the New Mexico Supreme Court for certiorari review, but

his petition was denied. He subsequently turned to the federal courts for relief.

      In a pro se habeas petition filed in the district court, Mr. Sanchez reasserted

his Fourth Amendment and ineffective assistance of counsel claims. And after a

magistrate judge appointed counsel and directed Mr. Sanchez to file an amended

petition, he once again pressed these same claims. More specifically,

Mr. Sanchez argued that the state appeals court unreasonably applied federal law

by failing to consider the Supreme Court’s decision in Welsh v. Wisconsin,

                                          -4-
466 U.S. 740 (1984), a case involving a warrantless, in-home DWI arrest that the

Court held was unjustified by probable cause and exigent circumstances. The

magistrate judge rejected this contention and recommended that habeas relief be

denied. Over Mr. Sanchez’s objections, the district court judge agreed. We now

affirm.

                                           II

      This appeal is governed by the standards of the Antiterrorism and Effective

Death Penalty Act (AEDPA). Under the AEDPA, if a claim is adjudicated on the

merits in a state court, a federal court will grant habeas relief only if that

adjudication produced a decision “that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The threshold consideration is whether

the federal law at issue is clearly established. See House v. Hatch, 527 F.3d

1010, 1015 (10th Cir. 2008). Only if there is clearly established federal law must

we consider whether the state court’s decision was contrary to, or involved an

unreasonable application of such federal law. Id. at 1018. “A state-court

decision is contrary to clearly established federal law if: (a) ‘the state court

applies a rule that contradicts the governing law set forth in Supreme Court

cases’; or (b) ‘the state court confronts a set of facts that are materially

                                          -5-
indistinguishable from a decision of the Supreme Court and nevertheless arrives

at a result different from that precedent.’” Id. (brackets omitted) (quoting

Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006)). A state court

unreasonably applies clearly established federal law if it “correctly identifies the

governing legal rule but applies it unreasonably to the facts.” Williams v. Taylor,

529 U.S. 362, 407-08 (2000).

      We begin with Mr. Sanchez’s Fourth Amendment claim. A federal habeas

court cannot overturn a state conviction due to a Fourth Amendment violation if

the petitioner had a full and fair opportunity to litigate the claim in state court.

Stone v. Powell, 428 U.S. 465, 494 (1976). Mr. Sanchez contends he had no such

opportunity because the New Mexico Court of Appeals failed to cite Welsh. The

determinative question, however, is not whether the court of appeals referenced a

particular case, but whether it recognized and made “at least [a] colorable

application of the correct Fourth Amendment constitutional standards.” See

Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978). And on this score, it

is beyond dispute that the state court correctly identified and at least applied in a

colorable fashion the federal mandate that a warrantless entry and arrest be

justified by probable cause and exigent circumstances. See United States v.

Reeves, 524 F.3d 1161, 1169 (10th Cir. 2008). Thus, the omission of Welsh from

the state court’s analysis did not deprive Mr. Sanchez of an opportunity to fully




                                           -6-
and fairly litigate his Fourth Amendment claim, and as a consequence, he is

barred by Stone from seeking federal habeas relief on that ground.

      We turn to Mr. Sanchez’s ineffective assistance of counsel claim, which is

predicated on trial counsel’s failure to raise the Fourth Amendment issue. A

Sixth Amendment claim based on counsel’s failure to competently litigate a

Fourth Amendment issue is a cognizable ineffective assistance of counsel claim,

notwithstanding the rule of Stone. See Kimmelman v. Morrison, 477 U.S. 365,

375, 382-83 (1986) (explaining that Stone’s restrictions on federal habeas review

of Fourth Amendment claims does not extend to Sixth Amendment ineffective

assistance of counsel claims where the principle error of counsel was incompetent

representation on a Fourth Amendment issue); see also United States v. Owens,

882 F.2d 1493, 1498 n.5 (10th Cir. 1989). We must therefore evaluate

Mr. Sanchez’s ineffective assistance of counsel claim under the familiar standard

established in Strickland v. Washington, 466 U.S. 668, 687 (1984), to discern

whether his attorney’s performance fell below an objective standard of

reasonableness and whether his attorney’s deficient performance prejudiced his

case. Because he asserts a Fourth Amendment-based ineffective assistance of

counsel claim, Mr. Sanchez “must also prove that his Fourth Amendment claim is

meritorious and that there is a reasonable probability that the verdict would have

been different absent the excludable evidence in order to demonstrate actual

prejudice.” See Kimmelman, 477 U.S. at 375.

                                         -7-
      The New Mexico Court of Appeals determined that Mr. Sanchez’s attorney

had not rendered ineffective assistance in failing to challenge the warrantless

arrest because the issue was meritless. This decision was neither contrary to, nor

an unreasonable application of, Strickland. Both New Mexico and federal law

permit an officer to make a warrantless arrest if the officer has probable cause to

believe that a misdemeanor has been committed in his presence. See Tanberg v.

Sholtis, 401 F.3d 1151, 1156, 1159 (10th Cir. 2005). Here, apart from his prior

observations at the convenience store, Captain Jones witnessed Mr. Sanchez force

on-coming traffic onto the shoulder of the road by crossing into the opposite lane

of travel. He also watched Mr. Sanchez narrowly miss colliding head-on with

another vehicle, forcing it entirely off the road. Not only were these observations

sufficient to establish probable cause, but they also demonstrate the exigency of

the situation by virtue of the danger Mr. Sanchez posed to the public. See United

States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993) (recognizing that an exigency

may exist when there is a “need to prevent a suspect’s escape, or [a] risk of

danger to the police or to other persons”) (citing Minnesota v. Olson, 495 U.S. 91,

100 (1990)). Indeed, Mr. Sanchez compounded the exigency by refusing to

pull-over and, instead, attempting to escape to his house. Although Mr. Sanchez

insists the arrest was wrongful because the officer stepped into his home, a

suspect may not thwart an otherwise proper arrest that was set in motion in public

by fleeing and retreating to his home. See United States v. Santana, 427 U.S. 38,

                                         -8-
42-43 (1976). 2 The entry and arrest were therefore supported by probable cause

and exigent circumstances. Accordingly, the Fourth Amendment issue was

meritless and establishes both that counsel was not deficient in failing to raise it

and that it would have had no impact on the proceeding. It follows, then, that the

state court’s ruling that counsel had not been ineffective in failing to litigate the

Fourth Amendment issue was neither contrary to, nor an unreasonable application

of, federal law.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Jerome A. Holmes
                                                     Circuit Judge




2
      Welsh v. Wisconsin, 466 U.S. 740 (1984), is inapposite here because that
case did not involve any immediate flight or attempt by the suspect to evade an
otherwise proper arrest.

                                          -9-
