                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0112n.06

                                           No. 09-5573
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  Jan 31, 2012
                                                                                LEONARD GREEN, Clerk

RICKY FULCHER,                                           )
                                                         )
       Petitioner-Appellant,                             )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE WESTERN
                                                         )         DISTRICT OF KENTUCKY
LOGAN COUNTY CIRCUIT COURT, et al.,                      )
                                                         )
       Respondents,                                      )
                                                         )
and                                                      )
                                                         )
REBECCA PANCAKE, Warden,                                 )
                                                         )
       Respondent-Appellee.                              )
                                                         )


BEFORE: MOORE and GRIFFIN, Circuit Judges; and QUIST, District Judge.*

       GRIFFIN, Circuit Judge.

       Petitioner Ricky Fulcher appeals the district court’s denial of his 28 U.S.C. § 2254 petition

for a writ of habeas corpus, asserting that his state-court convictions were obtained in violation of

the Fourth Amendment and the Double Jeopardy Clause. We affirm.

                                                 I.

       The undisputed facts of this case were set forth by the Kentucky Supreme Court as follows:




       *
       The Honorable Gordon J. Quist, Senior United States District Judge for the Western District
of Michigan, sitting by designation.
No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


                                  A. Indictment No. 01–CR–157.

       On July 24, 2001, an unidentified caller reported to the Russellville Police
       Department that two Caucasian males had robbed a boy and fired a weapon at him
       in the vicinity of Cave Springs Road in Logan County, Kentucky. Law enforcement
       units from the Kentucky State Police, the Logan County Sheriff’s Office, and the
       Auburn Police Department began searching for the two men. While driving down
       Gasper River Road, some of the officers passed [Fulcher]’s residence and noticed a
       number of people standing in the yard, all of whom, upon observing the marked
       police vehicles, immediately ran into the woods behind the residence. While giving
       chase, the officers noticed two marijuana plants growing in [Fulcher’s]’s back yard
       and the scent of ammonia emanating from an open window in the residence. Unable
       to obtain a response to knocks on the door of the residence, the officers sought and
       obtained a search warrant for the residence and surrounding property.

       While the officers were awaiting arrival of the search warrant, [Fulcher] emerged
       from the residence claiming to have been asleep. The officers ordered him to remain
       outside until after the warrant was executed. One of the persons who had run into the
       woods, David Harrison, was apprehended but not charged. Six others, C.J.
       Anderson, Johnnie Finn, Kandi Finn, Andrea Freeman, Jody Cherry, and Matthew
       Jones, voluntarily returned to the residence and were subsequently arrested.

                                                ***

       The July 24, 2001, search of [Fulcher]’s property was conducted by four Kentucky
       State Police officers. Outside [Fulcher]’s residence they found (1) the two marijuana
       plants; (2) two plastic containers containing “pill dough;” a “burn pile” containing
       (3) several empty punctured Prestone starting fluid cans (the ether is removed by
       puncturing the bottom of the can), (4) several empty Coleman Fuel cans; (5) two
       boxes filled with used coffee filters; (6) a glass container containing used coffee
       filters and three layers of liquid attached by plastic tubing to a sealed ketchup bottle
       which was “cooking” the liquid in the glass container, i.e., gas was then passing from
       the ketchup bottle through the plastic tubing into the glass container causing the
       liquid contents of the container to bubble; and (7) an altered propane tank fitted with
       a copper valve that had turned a bluish-green color (often caused by a chemical
       reaction with anhydrous ammonia) and containing a small amount of liquid that
       field-tested positive for anhydrous ammonia. After field-testing the contents of the
       propane tank, the officers disabled the tank from future use by puncturing it with
       bullet holes. The officers concluded that the ketchup bottle attached to the bubbling
       glass jar was a hydrogen chloride “generator” that was “cooking” the coffee filters

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Fulcher v. Logan County Circuit Court, et al.


       in the jar in order to extract the methamphetamine residue remaining from an earlier
       filtering process. The three layers in the bubbling jar consisted of a powdery
       substance at the bottom, a salty liquid substance in the middle, and a clear substance
       at the top. The contents of all three layers subsequently tested positive for
       methamphetamine.

       Inside the residence, the officers found (1) a bottle of denatured alcohol on the bar
       in the living room and (2) an aluminum foil “boat,” a device commonly used in
       smoking methamphetamine, in the bedroom. The “boat” contained burn marks (the
       methamphetamine is placed on the “boat,” which is then heated so that the fumes can
       be inhaled). In the kitchen, the officers found (3) two funnels and (4) a Mason jar,
       as well as cans of (5) Liquid Fire and (6) Coleman Fuel, and (7) a glass jar in the
       refrigerator containing ether. They also found what they believed to be (8) a bowl
       of liquid anhydrous ammonia in the deep freeze. The odor emanating from this bowl
       was the odor that had first attracted their attention and prompted them to obtain the
       search warrant. The officers diluted the substance in the bowl and poured it onto the
       ground without testing it.

       Following the search, [Fulcher] was arrested and charged with manufacturing
       methamphetamine, possession of anhydrous ammonia in an unapproved container
       with intent to manufacture methamphetamine, possession of drug paraphernalia, and
       possession of marijuana. He posted bond and was released.

                                                ***

                                  B. Indictment No. 01–CR–179.

       On August 1, 2001, Jody Cherry, one of the persons arrested on [Fulcher]’s property
       on July 24, 2001, signed a criminal complaint accusing [Fulcher] of twice threatening
       to kill him. On August 3, 2001, Captain Wallace Whitaker and Deputy Steve
       Stratton of the Logan County Sheriff’s Office proceeded to [Fulcher]’s residence to
       serve him with arrest warrants for terroristic threatening. Upon their arrival, they saw
       the same altered propane tank that the state police officers had disabled on July 24,
       2001. They also detected a strong odor that Stratton believed was “ammonia or
       ether.” Based on the presence of this odor and the altered propane tank, the officers
       obtained a warrant to search [Fulcher]’s residence and property.

       During the search inside the residence, the officers discovered (1) two plastic
       containers with powder in the bottom that were still smoking, and two empty plastic
       liquid dishwasher bottles that had been fitted with tubing and that were still

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No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


       emanating gas. Stratton opined that these items had recently been used as homemade
       generators to separate methamphetamine from ether during the last stage of the
       manufacturing process. They also found (2) a rubber hose; (3) salt; and (4) a glass
       jar containing fluid that later tested positive for the presence of methamphetamine;
       as well as (5) rolling papers; (6) a piece of burnt aluminum foil; (7) a Berez torch that
       could be used to heat the foil for smoking methamphetamine or to cook the denatured
       alcohol off of the powdered ephedrine or pseudoephedrine; and (8) pipes and
       syringes with burn residue. In addition, they found (9) a glass jar containing a liquid
       substance that was emanating an odor that Stratton identified as the odor of
       anhydrous ammonia, as opposed to, e.g., diluted (aqueous) household ammonia. He
       also testified that anhydrous ammonia is a hazardous material and that law
       enforcement procedures in place at that time prohibited its storage or transport to a
       laboratory. Because the sheriff’s office did not possess equipment to field-test the
       substance, Stratton diluted it with water and poured it onto the ground.

       Outside the residence, the officers located a burn pile containing (1) punctured
       Prestone starting fluid cans and (2) rubber hose. Under the hood of a junked car, they
       located (3) a bag full of lithium strips. Based on these findings, they charged
       [Fulcher] with manufacturing methamphetamine, possession of anhydrous ammonia
       in an unapproved container with intent to manufacture methamphetamine, and
       possession of drug paraphernalia.

Fulcher v. Commonwealth, 149 S.W.3d 363, 367-71 (Ky. 2004) (“Fulcher I”).

       Following a jury trial, Fulcher was convicted on all the charges levied against him in both

indictments: two counts of manufacturing methamphetamine, Ky. Rev. Stat. § 218A.1432(1); two

counts of possession of anhydrous ammonia in an unapproved container with intent to manufacture

methamphetamine, Ky. Rev. Stat. § 250.489; two counts of possession of drug paraphernalia, Ky.

Rev. Stat. § 218A.500(2); and one count of possession of marijuana, Ky. Rev. Stat. § 218A.1422.

Fulcher I, 149 S.W.3d at 366. Fulcher was thereafter sentenced to 30 years’ imprisonment. Id. at

367.




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No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


       Following sentencing, Fulcher presented several claims of error before the Kentucky

Supreme Court, including violation of the Double Jeopardy Clause. Specifically, Fulcher asserted

that “the convictions of separate offenses occurring on July 24, 2001, and August 3, 2001, were

premised upon the same evidence[.]” Id. In addition, Fulcher challenged the sufficiency of the

evidence, the jury instructions, an evidentiary ruling, and a sentencing enhancement. Id.

       Upon review, the Kentucky Supreme Court reversed both of Fulcher’s manufacturing

convictions, holding that Fulcher did not possess the necessary chemicals and equipment to be

convicted under a “possession” theory, requiring retrial on an “actual manufacture” theory. Id. at

370-74. The court also reversed Fulcher’s conviction for possession of anhydrous ammonia in an

unapproved container on August 3, holding that the jury instructions improperly allowed the jury to

consider the disabled propane tank left after the July 24 search. Id. at 375. This charge was also

remanded for retrial. The court affirmed Fulcher’s convictions for possession of drug paraphernalia

on both July 24 and August 3. Id. at 381. Finally, the court affirmed Fulcher’s convictions for

possession of marijuana and possession of anhydrous ammonia in an unapproved container on

July 24. Id.

       Upon remand, Fulcher moved to suppress evidence stemming from both the July 24 and

August 3 searches. This motion was denied, and the case proceeded to retrial. Fulcher was

reconvicted of possession of anhydrous ammonia in an unapproved container and manufacturing

methamphetamine on August 3. In addition, Fulcher was convicted of complicity to manufacture

methamphetamine on July 24.          Fulcher v. Commonwealth, Nos. 2005–SC–000883–MR,


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No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


2005–SC–000952–TG, 2007 WL 1536854, at *1 (Ky. May 24, 2007) (“Fulcher II”). Upon

resentencing, Fulcher received a total sentence of 49 years’ imprisonment, 19 years longer than his

initial sentence. Id. at *1.

         Following sentencing, Fulcher once again pursued a direct appeal, challenging the denial of

his motion to suppress, the sufficiency of the evidence supporting his convictions, the trial court’s

refusal to instruct the jury on facilitation, and an evidentiary ruling. Id. at *3-*7. The Kentucky

Supreme Court found no merit in these claims and affirmed Fulcher’s convictions and sentence. Id.

at *8.

         On April 14, 2008, Fulcher filed the present petition for a writ of habeas corpus. This

petition presents four grounds for relief: (1) “conviction obtained by use of evidence gained pursuant

to an unconstitutional search and seizure”; (2) use of “evidence obtained pursuant to an unlawful

arrest”; (3) “conviction obtained by the unconstitutional failure of the prosecution to disclose to the

defendant [evidence] favorable to [the] defense”; and (4) “conviction obtained by violation of the

protection against Double Jeopardy.” Upon respondents’ motion for summary judgment, a

magistrate judge recommended that the motion be granted and the petition be denied. Specifically,

the magistrate found that Fulcher’s Fourth Amendment claims were not cognizable on habeas review

and that the remaining claims were procedurally defaulted. After consideration of Fulcher’s




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Fulcher v. Logan County Circuit Court, et al.


objections, the district court adopted the magistrate’s report and recommendation. This timely

appeal followed.1

                                                 II.

       We review the district court’s habeas decision de novo. Souter v. Jones, 395 F.3d 577, 584

(6th Cir. 2005). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) supplies

the limitations of federal habeas review of state court proceedings. Under AEDPA, an application

for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless adjudication of the claim:

       (1) resulted in 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

       (2) resulted in a decision that 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); Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008).

                                                 III.

       Fulcher asserts that the Kentucky courts erred in rejecting his Fourth Amendment claims.

Such claims, however, are not generally cognizable on habeas review. Indeed, “where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution

does not require that a state prisoner be granted federal habeas corpus relief on the ground that



       1
        On appeal, Fulcher does not dispute that his third ground for relief, failure to disclose
favorable evidence to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), is
procedurally defaulted.

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No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v.

Powell, 428 U.S. 465, 482 (1976).

       In order to determine whether a petitioner received a “full and fair” opportunity to litigate a

Fourth Amendment claim, we apply a two-part test. First, we “must determine whether the state

procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment

claim[,]” and second, we “must determine whether presentation of the claim was in fact frustrated

because of a failure of that mechanism.” Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). In

performing this analysis, we do not review the “correctness” of the state court decision. Id.

       Upon review, we hold that Fulcher had a full and fair opportunity to litigate his Fourth

Amendment claims in state court. As his primary argument, Fulcher asserts that the Kentucky State

Police acted in bad faith in obtaining the August 3 search warrant, which he contends was not

supported by probable cause. This precise issue, however, was addressed at trial and reviewed by

the Kentucky Supreme Court. Fulcher II, 2007 WL 1536854, at *3-*4. Moreover, there is no

evidence indicating that Fulcher’s presentation of his claim was somehow frustrated. Accordingly,

Fulcher’s arguments before this court, which go to the “correctness” of the Kentucky Supreme

Court’s analysis, will not be considered. Riley, 674 F.2d at 526.

       With regard to the July 24 search, Fulcher again asserts that the warrant was not supported

by probable cause. This claim, like the first, is not cognizable on habeas review as Fulcher had a

“full and fair” opportunity to litigate this claim in state court. Id. What’s more, this claim is

procedurally defaulted, as Fulcher failed to challenge the July 24 search on direct appeal and he may


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Fulcher v. Logan County Circuit Court, et al.


no longer assert the claim in state-court proceedings. Fulcher II, 2007 WL 1536854, at *3 n.1.

Accordingly, the claim is barred.

                                                  IV.

       In his next claim of error, Fulcher asserts that the jury’s consideration of the same evidence

to support multiple convictions violated the Double Jeopardy Clause. Specifically, he asserts that

evidence left behind by officers after the July 24 search formed the basis for his convictions based

on the August 3 search. This claim is without merit for several reasons.

       First, Fulcher forfeited this claim. In his habeas petition, with regard to double jeopardy,

Fulcher stated: “The prosecution used the same evidence in both charges to obtain the conviction

of 19 more years in the second trial than in the first trial of 30 years, for a total of 49 years.” This

statement demonstrates that Fulcher took issue with his longer sentence upon retrial, not the use of

the same evidence to obtain multiple convictions.

       In addressing Fulcher’s double jeopardy claim, the magistrate framed the issue as follows:

“[c]onviction obtained by a violation of the protection against double jeopardy inasmuch as he

received more years on retrial.” The magistrate did not address the duplicative consideration of

evidence, and Fulcher did not object to this omission. Accordingly, Fulcher has forfeited this issue

on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

       Moreover, even apart from the forfeiture, Fulcher has procedurally defaulted his double

jeopardy claim with regard to two out of his three convictions stemming from the August 3 search.

These convictions were one count of manufacturing methamphetamine, one count of possession of


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No. 09-5573
Fulcher v. Logan County Circuit Court, et al.


anhydrous ammonia in an unapproved container, and one count of possession of drug paraphernalia.

As Fulcher points out, he directly appealed his first set of convictions to the Kentucky Supreme

Court and presented a double jeopardy claim based upon the duplicative consideration of evidence.

Fulcher I, 149 S.W.3d at 374. That court held that the use of duplicative evidence was not a

violation of double jeopardy with regard to his possession of drug paraphernalia and affirmed the

August 3 conviction. Fulcher’s convictions for manufacturing methamphetamine and possession

of anhydrous ammonia in an unapproved container on August 3 were both reversed and remanded.

Id. at 375. Following retrial, Fulcher was again convicted of these crimes. However, upon direct

review of these convictions, Fulcher did not present a double jeopardy claim, resulting in procedural

default. Coleman, 501 U.S. at 731; Hartman, 492 F.3d at 358.

       We disagree with Fulcher’s assertion that it was unnecessary to reassert the double jeopardy

claim in his second direct appeal. This court lacks jurisdiction over claims “not fairly presented to

the state courts.” Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004). The very purpose of the

exhaustion requirement is to “give the state courts an opportunity to act on [a petitioner’s] claims

before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999). Here, Fulcher did not assert before any Kentucky court that his convictions

upon retrial were procured in violation of the Double Jeopardy Clause. Accordingly, the claim was

left unexhausted and is now procedurally defaulted. See King v. Reynolds, 77 F.3d 492, 1996 WL

77034, at *2 (10th Cir. 1996) (Table).




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Fulcher v. Logan County Circuit Court, et al.


       This leaves Fulcher’s conviction for possession of drug paraphernalia on August 3. Before

the Kentucky Supreme Court, Fulcher asserted that this conviction was improperly obtained through

the jury’s consideration of the same evidence used to obtain his July 24 conviction. The court

rejected this argument, holding that the continuous possession of drug paraphernalia allows for more

than one conviction when the possession is “interrupted” by legal process. Fulcher I, 149 S.W.3d

at 376-78. Fulcher does not argue that this holding constitutes an unreasonable application of clearly

established federal law or involves an unreasonable determination of fact. 28 U.S.C. § 2254(d).

Rather, he merely asserts, without developed argumentation, that the jury’s consideration of the same

evidence to convict him of two separate crimes constitutes double jeopardy. Accordingly, this

argument is forfeited. See Taylor v. McKee, 649 F.3d 446, 452 (6th Cir. 2011) (“[I]ssues adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed

waived.”) (internal quotation marks and citation omitted).

       Moreover, even if Fulcher had not forfeited his challenge of the Kentucky Supreme Court’s

analysis, any such challenge would fail. We may grant habeas relief only if the state-court decision

“was contrary to, or involved an unreasonable application of, clearly established Federal law,” or

“resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. §

2254(d). There is nothing in the record to indicate that the Kentucky Supreme Court made an

unreasonable determination of fact, and its application of federal law was not unreasonable.




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Fulcher v. Logan County Circuit Court, et al.


       The Double Jeopardy Clause provides that no person shall “be subject for the same offence

to be twice put in jeopardy of life or limb.” U.S. Const., amend. V.2 Generally, “continuous and

uninterrupted possession” of contraband may be the subject of only one criminal prosecution. United

States v. Jones, 533 F.2d 1387, 1390 (6th Cir. 1976) (citing Ex parte Snow, 120 U.S. 274, 281-86

(1887)). The Kentucky Supreme Court held that Fulcher’s possession of drug paraphernalia, first

discovered on July 24, was interrupted by legal process, allowing for an additional prosecution.

Although the Supreme Court has not directly addressed this issue, the federal circuit courts have

consistently held that a continuous course of conduct, such as possession of an illegal item, may be

interrupted so as to allow for multiple convictions. See, e.g., United States v. Conley, 291 F.3d 464,

470 (7th Cir. 2002); United States v. Rivera, 77 F.3d 1348, 1351-52 (11th Cir. 1996). Indeed, we

have previously held that:

       The return of an indictment charging a course of conduct prevents the relitigation of
       any course of conduct charged in the indictment which is tried or dismissed with
       prejudice and which occurred prior to the return of the indictment. However, it does
       not cut off the ability of the Government to charge a course of conduct subsequent
       to the indictment which also establishes possession of the same contraband.

Jones, 533 F.2d at 1391. In this case, it is unclear whether Fulcher was actually indicted for his

July 24 conduct prior to the August 3 search. Nevertheless, the Kentucky Supreme Court held that

Fulcher’s arrest was sufficient “legal process” to interrupt his possession. Given that Fulcher has




       2
        The Double Jeopardy Clause applies against the States through the Due Process Clause of
the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969).

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provided no contrary authority, we hold that this finding is not an unreasonable application of clearly

established federal law.

                                                  V.

        In his final claim, Fulcher asserts that the Kentucky courts violated double jeopardy when

he received a substantially higher sentence upon retrial. This claim, however, was not raised on

direct appeal. Accordingly, it is procedurally defaulted. Coleman, 501 U.S. at 731; Hartman, 492

F.3d at 358. Moreover, even if we were to address this claim, it is clearly without merit. Upon

retrial, a jury is not precluded from imposing a higher sentence than that initially imposed. Chaffin

v. Stynchcombe, 412 U.S. 17, 18 (1973). Thus, Fulcher is not entitled to habeas relief on this claim.

                                                 VI.

        For the foregoing reasons, we affirm the district court’s denial of Fulcher’s habeas corpus

petition.




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