                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STEPHEN D. NEWMAN,                        No. 13-36185
           Petitioner-Appellant,
                                           D.C. No.
               v.                    1:11-cv-00520-LMB

TIMOTHY WENGLER,
         Respondent-Appellee.              OPINION


      Appeal from the United States District Court
                for the District of Idaho
      Larry M. Boyle, Magistrate Judge, Presiding

               Argued and Submitted
          May 8, 2015—Seattle, Washington

                    Filed June 16, 2015

    Before: J. Clifford Wallace, Andrew J. Kleinfeld,
         and Ronald M. Gould, Circuit Judges.

                    Per Curiam Opinion
2                     NEWMAN V. WENGLER

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of Idaho
state prisoner Stephen Newman’s habeas corpus petition
challenging his conviction for attempted rape.

     The panel held that the Stone v. Powell doctrine – where
the state has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure
was introduced at his trial – survived the passage of the
Antiterrorism and Effective Death Penalty Act.

    The panel held that Newman had a full and fair
opportunity in state court to litigate his Fourth Amendment
claims, and that the Stone v. Powell doctrine therefore bars
consideration of his Fourth Amendment claim in a federal
habeas corpus petition.


                            COUNSEL

Dennis P. Riordan (argued), Donald M. Horgan, and Gary K.
Dubcoff, Riordan & Horgan, San Francisco, California, for
Petitioner-Appellant.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        NEWMAN V. WENGLER                            3

L. LaMont Anderson (argued), Deputy Attorney General, and
Lawrence G. Wasden, Attorney General, Boise, Idaho, for
Respondent-Appellee.


                               OPINION

PER CURIAM:

    In 2008, Stephen Newman was convicted by a jury of
attempted rape and sentenced to a unified term of 15 years
with the first 7 ½ fixed. The Idaho Court of Appeals affirmed
his conviction on direct appeal, and denied his petition for
rehearing. The Idaho Supreme Court also denied his petition
for review. Newman filed a federal habeas petition claiming
that the Idaho trial court violated his Fourth and Fourteenth
Amendment right to be free from unlawful searches and
seizures. The State argued that Newman’s claim was barred
by the Supreme Court’s holding in Stone v. Powell, 428 U.S.
465 (1976). The magistrate judge1 agreed and denied the
petition. The Court held in Stone that “where the State has
provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was
introduced at his trial.” Id. at 494 (footnote omitted).
Newman now appeals and argues that the Stone doctrine did
not survive the passage of the Antiterrorism Effective Death
Penalty Act (“AEDPA”), or in the alternative, that he did not
receive a full and fair opportunity to litigate his Fourth
Amendment claims in the Idaho state courts.


 1
     Both parties consented to adjudication by a magistrate judge.
4                  NEWMAN V. WENGLER

    We have jurisdiction pursuant to 28 U.S.C. § 2253.
Reviewing the magistrate judge’s decision de novo, Lambert
v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004), we affirm.
The question of whether the doctrine of Stone v. Powell
survives the passage of AEDPA is a question of first
impression in our circuit. We hold that it does, and that its
application bars Newman’s claim.

    Newman argues that the plain language of 28 U.S.C.
§ 2254(d) abrogates Stone. Section 2254(d) states:

       An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated
       on the merits in State court proceedings unless
       the 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.

Newman’s sole support for this argument is Carlson v.
Ferguson, 9 F. Supp. 2d 654 (S.D.W. Va. 1998) (“Carlson
II”), a district court case from West Virginia. In Carlson II,
the district court held that Stone merged with AEDPA and
“that the phrase ‘any claim that was adjudicated on the
merits’ as drafted in section 2254(d) includes claims
                      NEWMAN V. WENGLER                                 5

premised under the Fourth Amendment’s exclusionary rule.”
Id. at 657. The district court in Carlson II held that
“AEDPA’s two-tiered analytical approach replaces [Stone’s]
full and fair opportunity test.” Id. at 656. This approach
liberalizes the consideration of certain Fourth Amendment
claims in a habeas petition.

    Under Stone, exclusionary rule claims were barred if the
petitioner had a full and fair opportunity to litigate them
below whether or not they were actually adjudicated on the
merits and whether or not they involved an unreasonable
application of Supreme Court law or unreasonable
determination of the facts. “Stone reversed both the eighth
and ninth circuits, not because the Justices thought that the
state courts had handled the fourth amendment issues
correctly, but because error on a fourth amendment issue does
not support a writ of habeas corpus.” Hampton v. Wyant,
296 F.3d 560, 563 (7th Cir. 2002). We are not persuaded that
the passage of AEDPA abrogated this doctrine and eliminated
other existing limitations on habeas relief sub silencio. This
interpretation is not compelled by the text, has not been
adopted by any other circuit to consider the issue, and
requires us to engage in anticipatory overruling of Supreme
Court precedent.

    The language of section 2254(d) is not in tension with
Stone because it does not imply a negative pregnant.2 There
is no implication in § 2254(d) that because the statute
commands us not to grant a petition unless certain conditions
are met, those are the only conditions under which we could


 2
   A negative pregnant is “[a] denial implying its affirmative opposite by
seeming to deny only a qualification of the allegation and not the
allegation itself.” Black’s Law Dictionary 1132 (9th ed. 2009).
6                     NEWMAN V. WENGLER

deny a petition. The Supreme Court has held that the text of
AEDPA established “a precondition to the grant of habeas
relief . . . not an entitlement to it,” Fry v. Pliler, 551 U.S. 112,
119 (2007), and that “[i]t is . . . well settled that the fact that
constitutional error occurred in the proceedings that led to a
state-court conviction may not alone be sufficient reason for
concluding that a prisoner is entitled to the remedy of
habeas,” Williams v. Taylor, 529 U.S. 362, 375 (2000). In
Danforth v. Minnesota, 552 U.S. 264, 278 (2008), the
Supreme Court explained that although Title 28 gives federal
courts the power to grant writs of habeas corpus, it also
“leaves unresolved many important questions about the scope
of available relief.” Id. The Court “has interpreted that
congressional silence—along with the statute’s command to
dispose of habeas petitions ‘as law and justice require,’—as
an authorization to adjust the scope of the writ in accordance
with equitable and prudential considerations.” Id. (citation
omitted) (quoting 28 U.S.C. § 2243). The Stone doctrine is
one of a number of such prudential considerations.3

    No other circuit that has considered this issue has
determined that AEDPA abrogated Stone. The Tenth and the
Seventh Circuits have both held that Stone survives the
passage of AEDPA. In Herrera v. Lemaster, 225 F.3d 1176
(10th Cir. 2000), the Tenth Circuit rejected Carlson II
because it was not persuaded “that by enacting AEDPA
Congress intended to expand in any way a habeas petitioner’s
right to overturn a state court decision.” Id. at 1178 n.2. The
Supreme Court has “frequent[ly] recogni[zed] that AEDPA



    3
   See, e.g., Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error
standard); McCleskey v. Zant, 499 U.S. 467 (1991) (abuse-of-the-writ bar
to relief); Wainwright v. Sykes, 433 U.S. 72 (1977) (procedural default).
                    NEWMAN V. WENGLER                           7

limited rather than expanded the availability of habeas relief.”
Fry, 551 U.S. at 119 (citing Williams, 529 U.S. at 412).

     Stone and AEDPA both narrowed the availability of
habeas relief in exclusionary rule cases because, on collateral
review, “the contribution of the exclusionary rule, if any, to
the effectuation of the Fourth Amendment is minimal, and the
substantial societal costs of application of the rule persist with
special force.” Stone, 428 U.S. at 494–95. The Court
observed that “in the case of a typical Fourth Amendment
claim, asserted on collateral attack, a convicted defendant is
usually asking society to redetermine an issue that has no
bearing on the basic justice of his incarceration.” Id. at 491
n.31. The Court concluded that this was because the
exclusionary rule is “not a personal constitutional right,” but
is instead a way to deter police misconduct. Id. at 486. The
Seventh Circuit, in determining that Stone survived the
passage of AEDPA, agreed:

        What [a petitioner] needs in order to prevail
        on a collateral attack is not simply a holding
        that the directive was invalid, but a conclusion
        that this error requires application of the
        exclusionary rule. And Stone v. Powell holds
        that, although both state and federal courts
        must apply the exclusionary rule at trial and
        on direct appeal, it is inappropriate to use the
        exclusionary rule as the basis of collateral
        relief because it would not appreciably
        augment the deterrence of improper police
        conduct.

Hampton, 296 F.3d at 562 (citation omitted).
8                  NEWMAN V. WENGLER

    In a pre-AEDPA case, Woolery v. Arave, 8 F.3d 1325 (9th
Cir. 1993), we agreed that “enforcing the exclusionary rule
through writs of habeas corpus would not further the deterrent
and the educative purposes of the rule to an extent sufficient
to counter the negative effect such a policy would have on the
interests of judicial efficiency, comity and federalism.” Id. at
1325. We hold that there is not, in AEDPA, an implied
broadening of the right to habeas relief with respect to the
exclusionary rule.

    Finally, we hold that Stone survives because we do not
engage in anticipatory overruling of Supreme Court
precedent. The Supreme Court has made clear that it retains
“the prerogative of overruling its own decisions.” Rodriguez
de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484
(1989). AEDPA “does not authorize this court to overrule
Supreme Court precedent ‘even where subsequent decisions
or factual developments may appear to have significantly
undermined the rationale for [an] earlier holding.’” United
States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (quoting
Roper v. Simmons, 543 U.S. 551, 594 (2005)) (O’Connor, J.,
dissenting) (alteration in the original).

    Since we hold that Stone is still good law, we now
analyze under Stone whether we can consider Newman’s
Fourth Amendment claim. We are barred by the Stone
doctrine from considering Newman’s claim if he had a “full
and fair opportunity” to litigate his Fourth Amendment
claims in the state courts. “The relevant inquiry is whether
petitioner had the opportunity to litigate his claim, not
whether he did in fact do so or even whether the claim was
correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891,
899 (9th Cir. 1996).
                   NEWMAN V. WENGLER                          9

    Newman had three hearings at the trial court level in his
attempt to suppress evidence seized from his SUV. He does
not argue that this was not enough for a full and fair
opportunity to litigate his Fourth Amendment claims.
Instead, he contends that he was “ambushed” by the state
court of appeals when it decided his Fourth Amendment
claim on a different ground than the trial court. However, it
is well settled under Idaho law that “[w]here the lower court
reaches the correct result by an erroneous theory, [an
appellate court] will affirm the order on the correct theory.”
State v. Russo, 336 P.3d 232, 240 (Idaho 2014) (quoting
Nampa & Meridian Irr. Dist. v. Mussell, 72 P.3d 868, 873
(Idaho 2003) (internal quotation marks omitted).
Furthermore, Newman was aware that the State would argue
a new theory on appeal when he received its brief. Newman
addressed the State’s arguments in his reply brief, in his brief
when he petitioned for rehearing by the state court of appeals,
and in his petition before the Idaho Supreme Court. This was
a full and fair opportunity.

    Newman also argues that his full and fair opportunity was
compromised because the state trial court made insufficient
factual findings for the state court of appeals to decide on a
different ground. He argues that his case should have been
remanded for additional fact finding. This is not our
standard. “All Stone v. Powell requires is the initial
opportunity for a fair hearing. Such an opportunity for a fair
hearing forecloses this court’s inquiry, upon habeas corpus
petition, into the trial court’s subsequent course of action,
including whether or not the trial court has made express
findings of fact.” Caldwell v. Cupp, 781 F.2d 714, 714 (9th
Cir. 1986) (internal quotation marks and citations omitted).
Newman does not argue that his initial hearings were not fair,
but that they were wrongly decided. “As in Stone itself, all
10                  NEWMAN V. WENGLER

we have is a claim of error—and that is not enough to support
collateral relief based on the exclusionary rule.” Hampton,
296 F.3d at 565.

    The Stone v. Powell doctrine survives the passage of
AEDPA and therefore bars Newman’s claim because he had
a full and fair opportunity in state court to litigate his Fourth
Amendment claims.

     AFFIRMED.
