37 F.3d 1265 (8th Cir. 1994), 93-2932, Willett v. Lockhart

Docket Nº:93-2932.
Citation:37 F.3d 1265
Party Name:Benny Lee WILLETT, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
Case Date:October 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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37 F.3d 1265 (8th Cir. 1994)

Benny Lee WILLETT, Appellant,

v.

A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 93-2932.

United States Court of Appeals, Eighth Circuit

October 12, 1994

Submitted May 24, 1994.

Richard Sheppard Arnold, Chief Judge, with whom McMillian, Circuit Judge, joined, concurred in judgment and filed opinion.

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D. Franklin Arey, III, Conway, AR, argued, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, AR, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, Circuit Judges, en banc.

BOWMAN, Circuit Judge.

Benny Lee Willett appeals the order of the District Court 1 dismissing his petition for writ of habeas corpus. We affirm.

Willett was convicted in Arkansas state court of possession of a controlled substance with intent to deliver. The jury found Willett to be a habitual offender and he was sentenced to life in prison. In his direct appeal, Willett challenged the trial court's finding that officers had probable cause to stop his vehicle, and thus legally to conduct a warrantless search of the vehicle and to seize the gun, drug paraphernalia, marijuana, and cocaine found therein. Willett argued that the stop and the ensuing search and seizure violated his Fourth Amendment rights (made applicable to the states via the Fourteenth Amendment), and that his motion to exclude the seized materials from evidence at trial should have been granted. The Arkansas Supreme Court disagreed and affirmed the conviction. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989) (one justice dissenting).

Pursuant to 28 U.S.C. Sec. 2254, Willett filed a petition for a writ of habeas corpus in the District Court, claiming that the state courts' conclusions that his Fourth Amendment rights had not been violated were not fairly supported by the record as a whole. The District Court adopted the findings and recommendations of the Magistrate Judge 2 and dismissed the petition. The court determined that it would not review Willett's claims, as he had been afforded "an opportunity for full and fair litigation" of those claims in state court, according to the rule set forth by the Supreme Court in Stone v.

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Powell, 428 U.S. 465, 482, 494, 96 S.Ct. 3037, 3046, 3052, 49 L.Ed.2d 1067 (1976). Willett appeals.

After hearing oral argument on the appeal, the panel of three judges initially assigned to hear the case concluded that previous panel decisions from the Eighth Circuit applying the teachings of Stone appeared to be in conflict. The panel thus referred the case to the Court for hearing en banc, and oral argument has been heard by the full Court. With this opinion, we seek to resolve any conflict within the Circuit concerning the application of Stone and to give guidance to our district courts for their determination of future Stone issues.

Stone itself provides a historical perspective of the federal writ of habeas corpus in the United States, a review of which provides the backdrop for our opinion. See id. at 474-81, 96 S.Ct. at 3042-46.

In Congress's first concession of jurisdiction to the federal courts in 1789, authority was given to grant the writ of habeas corpus to prisoners illegally held in the custody of the United States. In 1867, Congress extended that authority to permit the granting of the writ to state prisoners who were being held in violation of the Constitution or laws of the United States. It was not until 1915 that habeas jurisdiction began to take on the look that we know today, when the Supreme Court broadened the range of habeas jurisdiction beyond consideration of the jurisdiction of the sentencing court. In Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), the prisoner challenged his murder trial as having been dominated by a hostile mob. The Court recognized that execution of a sentence that resulted from mob-dominated proceedings, such "that the jury is intimidated and the trial judge yields," would violate the accused's due process rights if the state "suppl[ied] no corrective process." Id. at 335, 35 S.Ct. at 590. The Supreme Court found no "reason to suppose that [the state supreme court] did not fairly and justly perform its duty" in reviewing the prisoner's claim, id. at 333, 35 S.Ct. at 589, and "affirmed the denial of relief because Frank's federal claims had been considered by a competent and unbiased state tribunal." Stone, 428 U.S. at 476, 96 S.Ct. at 3043.

A sea change in the scope of the writ was signaled by the Court in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). The constitutional issues in that case concerned racial discrimination in the selection of grand jurors and the admission of allegedly coerced confessions, and the Court asked, "Have petitioners received hearings consonant with standards accepted by this Nation as adequate to justify their convictions?" Id. at 465, 73 S.Ct. at 412. "Despite the apparent adequacy of the state corrective process, the Court reviewed the denial of the writ of habeas corpus and held that Brown was entitled to a full reconsideration of these constitutional claims, including, if appropriate, a hearing in the Federal District Court." Stone, 428 U.S. at 477, 96 S.Ct. at 3044.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), effectively overruled by Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991), the Court permitted consideration of a constitutional claim upon a petition for a federal writ of habeas corpus even though the claim was not raised by the prisoner in state proceedings. By thus expanding the scope of the writ, the Court had "narrowly restrict[ed] the circumstances in which a federal court may refuse to consider the merits of federal constitutional claims." Stone, 428 U.S. at 478, 96 S.Ct. at 3044.

Against the historical backdrop sketched above, and with thirteen years of experience with the regime of Fay v. Noia under its belt, the Court in Stone v. Powell considered whether searches and seizures allegedly illegal under the Fourth Amendment, ordinarily rectified in criminal cases by the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), should continue to receive the same review as other constitutional violations alleged by state prisoners in federal habeas cases. The Court, using the language that has resulted in the lower federal courts' applying a degree of habeas review that ranges from imperceptible to quite broad, held "that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution

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does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 481-82, 494, 96 S.Ct. at 3046, 3052 (emphasis added).

The issue before us is the extent to which federal habeas courts are to review the proceedings in state court--if we are to review them at all--to determine whether the state afforded the petitioner an opportunity for full and fair litigation. In Howard v. Pung, 862 F.2d 1348 (8th Cir.1988), cert. denied, 492 U.S. 920, 109 S.Ct. 3247, 106 L.Ed.2d 593 (1989), Howard argued that his petition was not Stone-barred because a factual finding of the state court was not supported by the evidence. The panel opinion noted that "the bar in Stone operates even when the state court has erroneously applied fourth amendment principles," but then went on to conclude that "a state court evidentiary hearing may be less than full and fair if it yields factual determinations not fairly supported by the record as a whole." Id. at 1350. That language obviously requires a de novo review of the record of the state court proceedings to determine if the factual findings are "fairly supported," but then grants deference--absolute deference--to the state's application of federal constitutional law to those facts. Further, the Howard Court apparently considered whether the actual proceedings in state court were full and fair, rather than whether the petitioner was provided an opportunity for full and fair litigation of his Fourth Amendment claims. More recently, other Eighth Circuit panels have taken a less inclusive approach to the review of potentially Stone-barred petitions. See Cortis v. Kenney, 995 F.2d 838, 841 (8th Cir.1993); Robinson v. Clarke, 939 F.2d 573, 575 (8th Cir.1991) (per curiam). These later cases seem to assume that Stone forecloses the review of the record that Howard...

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