368 F.2d 822 (D.C. Cir. 1966), 19664, Thornton v. United States
| Citation | 368 F.2d 822 |
| Party Name | Charles J. THORNTON, Appellant, v. UNITED STATES of America, Appellee. |
| Case Date | October 06, 1966 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit |
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Submitted April 28, 1966.
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Mr. Henry J. Karison, Washington, D.C. (appointed by this court), submitted on the brief for appellant.
Mr. Michael R. Sonnenreich, Atty., Dept. of Justice, with whom Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U.S.
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Attys., were on the brief, submitted on the brief for appellee.
Before BASTIAN, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
LEVENTHAL, Circuit Judge:
In this case we are asked to reconsider our doctrine 1 that ordinarily a claim of illegal search and seizure may not be raised collaterally under 28 U.S.C. § 2255. Our prior holdings (supra, note 1) are in accord with the opinions of most of the other circuits, which have ruled that collateral review is not available, either on the law or by way of evidentiary hearing. 2 However, there have been recent statements to the contrary--technically in dicta-- in circuit opinions 3 based on views believed to be inherent in and required by recent Supreme Court opinions. Accordingly we have reexamined our earlier position. We confirm that generally a claim by a federal prisoner that evidence admitted at his trial was the fruit of an unconstitutional search or seizure is not properly the ground of a collateral attack on his conviction. As further noted below, this rule is subject to an exception for special circumstances which are not present in this case.
On June 1, 1960, appellant Charles J. Thornton was arrested at his home by Federal narcotics agents. After indictment on thirty-seven counts of conspiracy and substantive violations of the drug laws, he and four co-defendants were tried and found guilty on all counts. Appellant was sentenced on January 1, 1961, to eighteen years in prison, but this term was later reduced to the eight year confinement he is presently serving. An appeal was taken from the judgments of conviction, and in the course of a brief of over eighty pages, eleven major grounds for reversal were urged. Although this court found errors as to two of the defendants, appellant's conviction was affirmed, sub nom. Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438 (1962). Certiorari was denied, 370 U.S. 946, 82 S.Ct. 1593, 8 L.Ed.2d 812 (1962).
In the intervening years, appellant filed several motions and petitions, seeking various kinds of relief on numerous grounds. The present proceeding began when, on January 18, 1965, he filed a motion under 28 U.S.C. § 2255 to vacate or set aside his sentence, alleging first that evidence illegally obtained by the arresting officers had been admitted at his trial, in contravention of the Fourth Amendment; and, second, that trial counsel neglected to file a pre-trial motion to suppress the purportedly unconstitutionally seized evidence, and this constituted ineffective assistance of counsel, violative of the Sixth Amendment. 4
The District Court appointed counsel and held an evidentiary hearing at which
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appellant was permitted to testify. Because of the intimate relationship between the illegal search and inadequate counsel points the court allowed counsel to probe the circumstances of the arrest and search without ruling whether this kind of issue might properly be raised on a Section 2255 motion. Appellant testified that he was awakened at 4:30 A.M. on June 1, 1960, by a loud rapping at his front door. While he arose to answer the knock, he heard someone 'busting' or 'kicking' in the porch door. When he opened the door, his visitors identified themselves as federal officers and claimed they had a warrant for his arrest. They were invited in, and proceeded to search appellant and his apartment. In the course of their examination, they discovered and seized personal effects, and in addition an address book and a slip of paper linking appellant to some of his codefendants. The admission of these two items in evidence at the trial is the basis of appellant's Fourth Amendment claim. The Government did not cross-examine appellant on the circumstances of the arrest.
On the issue of ineffective assistance of counsel, appellant testified that his counsel had not queried him about the details of the arrest, and despite assurances that he would recover appellant's personal effects made no motion to that end. Appellant admitted that he might not have requested his counsel to recover the address book and slip of paper, or mentioned their incriminating potential.
Appellant's former counsel, called to the stand, had no recollection of the details of the consultations and proceedings of five years ago. The court and the parties agreed to let the record speak for itself. The transcript of the original trial revealed that counsel for the co-defendants did most of the questioning; that although the suppression motion was not made by appellant's lawyer, yet that attorney concurred in the motion of counsel for co-defendants, who indeed served as lead counsel during the entire trial. The court held that the failure to file an independent motion in appellant's behalf to suppress the evidence in question did not under the circumstances amount to a constitutional inadequacy of counsel. We affirm this ruling, and do not consider the point to require further discussion.
Insofar as the motion rested on the unreasonableness of the search and seizure, it was denied with a ruling by the court that as a matter of law the admission in evidence of the fruits of an illegal arrest, search, or seizure cannot serve as the basis of a motion under § 2255.
The extent of relief and review available on a § 2255 motion is the same as that open to a petitioner seeking vindication of his rights by the habeas corpus route. 5 The only difference is that Congress enacted § 2255 in the 1948 Judicial Code in order to provide a less cumbersome remedy, through consideration by the sentencing court rather than the district of confinement. United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Hill v. United States, 368 U.S. 424, 427-428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).
Many opinions declare that collateral attack, as by habeas corpus, is available to correct the denial of a constitutional right. 6 This is the general rule but it is not an absolute. These expressions do not obliterate the doctrine that the normal and customary method of correcting trial errors, even as to constitutional questions, is by appeal, and that habeas corpus cannot serve as a substitute for the regular judicial process of trial and appeal in the absence of circumstances
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indicating collateral attack is needed to provide an effective means of preserving constitutional rights. Sunal v. Large, 332 U.S. 174, 179-180, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Waley v. Johnston, 316 U.S. 101, 104-105, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); United States v. Sobell, 314 F.2d 314, 321-323 (2d Cir.) cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963).
As noted in Smith v. United States, 88 U.S.App.D.C. 80, 85, 187 F.2d 192, 197 (1950), cert. denied, 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358 (1951): 'Where the alleged error of the trial court is in the admission of evidence subject to correction on appeal, and there is representation by counsel, habeas corpus is not the appropriate remedy.' Collateral review is available, however, for the denial of a constitutional right accompanied by 'weakness in the judicial process which has resulted in the conviction', such as lack of counsel, perjury undiscovered, mob domination, etc. Id. at 86, 187 F.2d at 198.
Whether collateral attack is permissible depends on the nature of the constitutional claim, the effectiveness of the direct remedies, and the need for choices among competing considerations in quest of the ultimate goal of achievement of justice. The decision is not predetermined by the absolute availability of judicial power, but reflects the need to fathom and delineate the claims and circumstances that make the exercise of power appropriate. 7 The courts are called on to evolve and provide procedures and remedies that are effective to vindicate constitutional rights. However, where effective procedures are available in the direct proceeding, there is no imperative to provide an additional, collateral review, leaving no stone unturned, when exploration of all avenues of justice at the behest of individual petitioners may impair judicial administration of the federal courts, as by making criminal litigation interminable, and diverting resources of the federal judiciary. Sunal v. Large, supra, 332 U.S. at 182, 67 S.Ct. 1588.
Our rejection of the availability of collateral review for claims of unreasonable search and seizure (in the absence of exceptional circumstances) is not attributable to a low regard for the significance of the Fourth Amendment in our times and civilization. On the contrary, the magnitude of the Fourth Amendment in our constitutional constellation has prompted unusual remedies by Congress, as well as the courts. For more than fifty years, evidence secured by unconstitutional means has been held inadmissible at trial. 8 Exclusion at trial was supplemented, not in time but in effectiveness, by unusual remedies permitting pre-trial suppression of the items unlawfully seized. These remedies were developed both through the power of equity to forestall injury, and through a dynamic jurisdiction built on an inherent supervisory authority over the prosecution, an authority construed to embrace not only the attorney in court but to reach back to the previous activity of the enforcement agents underlying the prosecution. This judicial fountainhead of authority is now crystallized in and survives Rule 41(e)...
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