                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            AUG 01 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

DANA EWELL,                                       No. 11-15388

              Petitioner - Appellant,             D.C. No. 1:06-cv-00186-AWI-
                                                  MJS
  v.

A.K. SCRIBNER ,                                   MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                        Argued and Submitted July 20, 2012
                             San Francisco, California

Before: PAEZ and BYBEE, Circuit Judges, and VANCE, Chief District Judge.**

       Dana Ewell appeals the district court’s denial of his petition for habeas

corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
              The Honorable Sarah S. Vance, Chief District Judge for the United
States District Court for the Eastern District of Louisiana, sitting by designation.
      Ewell contends that the state appellate court erred in rejecting his claim that

his Fourth Amendment rights were violated by the admission of evidence obtained

from a cloned pager. A federal court may review Fourth Amendment claims in

habeas corpus proceedings only if the state court proceeding denied the applicant

an “opportunity for full and fair litigation of a Fourth Amendment claim.” Stone v.

Powell, 428 U.S. 465, 482 (1976). Because the state courts heard and considered

Ewell’s Fourth Amendment claim, Ewell was afforded a full and fair opportunity

to litigate it. See Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005);

Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); Gordon v. Duran, 895

F.2d 610, 613 (9th Cir. 1990). Accordingly, federal habeas corpus review of this

claim is precluded.

      Ewell also argues that the state appellate court erred in rejecting his claim

that the State’s violations of the recording and sealing requirements of Title III, 18

U.S.C. § 2510, et seq., entitled him to Title III’s suppression remedy. See 18

U.S.C. § 2518(8)(a). Ewell’s claim lacks merit. In order for a state petitioner to

assert a statutory claim in federal habeas corpus proceedings, he must demonstrate

that the error is “‘a fundamental defect which inherently results in a complete

miscarriage of justice [or] an omission inconsistent with the rudimentary demands

of fair procedure.’” Reed v. Farley, 512 U.S. 339, 348 (1991)(alteration in

original)(quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Ewell had a full

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and fair opportunity to litigate this claim in state court, and therefore fails to

demonstrate that any violation of Title III’s sealing requirement resulted in a

miscarriage of justice, or was an omission inconsistent with the rudimentary

demands of fair procedure. See Lord v. Lambert, 347 F.3d 1091, 1094 (9th Cir.

2003). Further, Ewell fails to demonstrate that the evidence used at trial was

otherwise unreliable. See id. at 1095. Ewell’s Title III claim is therefore not

cognizable on habeas corpus review.

      Finally, Ewell argues that the state appellate court erred in rejecting his

argument that the jury’s playback of a cassette tape in the jury room violated his

constitutional rights to due process, assistance of counsel, and a fair hearing. The

state court’s determination that the entire tape was admitted into evidence did not

constitute an unreasonable determination of the facts because the record showed

that the trial judge admitted the entire tape into evidence. See 28 U.S.C. §

2254(d)(2). Further, the state court’s decision rejecting this claim was neither

contrary to nor an “unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States.” See id. § 2254(d)(1);

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). There is no clearly established

Supreme Court authority that a jury’s playback of a tape that was admitted into

evidence violates a defendant’s constitutional rights. Further, Ewell fails to show

that he was prejudiced by the jury’s playing of any portion of the tape not played at

                                            3
trial. The state court’s finding that the tape was “inaudible and unintelligible” was

not an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).


      AFFIRMED.




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