U.S. ex rel. Henne v. Fike, 76-2239

• Decision Date: 02 August 1977
• Docket Number: No. 76-2239,76-2239
• Citation: 563 F.2d 809
• Parties: UNITED STATES of America ex rel. Willie B. HENNE, Petitioner-Appellant, v. James C. FIKE, Warden, and Allyn R. Sielaff, Director, etc., Respondents- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 809

563 F.2d 809

UNITED STATES of America ex rel. Willie B. HENNE, Petitioner-Appellant, v. James C. FIKE, Warden, and Allyn R. Sielaff, Director, etc Respondents- Appellees.

No. 76-2239.

United States Court of Appeals Seventh Circuit.

Argued April 27, 1977.

Decided Aug. 2, 1977. ^*

Ralph Ruebner, Deputy State Appellate Defender, Elgin, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Timothy B. Newitt, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before PELL and WOOD, Circuit Judges, and GORDON, District Judge. ^**

PER CURIAM.

The petitioner-appellant Willie B. Henne appeals the district court's ruling dated September 30, 1976, denying Henne's motion for enlargement and dismissing his petition for a writ of habeas corpus. For the reasons stated below, we affirm.

The petitioner was found guilty in a state court of the crimes of murder and escape after a jury trial. He is currently serving concurrent prison terms, imposed on May 26, 1972, of forty to seventy-five years on the murder conviction and three to nine years on the escape conviction. The convictions were affirmed on appeal by the Illinois Appellate Court, Second District, in People v. Henne, 23 Ill.App.3d 567, 319 N.E.2d 596 (1975). The Illinois Supreme Court denied his petition for leave to appeal on March 21, 1975.

Henne subsequently filed a petition for a writ of habeas corpus in the federal district court. In a decision dated January 13, 1976, Judge Prentice H. Marshall denied the respondents' motion for summary judgment. Subsequently, on September 30, 1976, Judge Joel M. Flaum dismissed the petition. The petitioner has appealed from the latter ruling.

During the late evening of September 15, 1971, or early morning of September 16, 1971, Henne was arrested by an Illinois State Trooper for the offense of driving while intoxicated. While in an inebriated state, Henne was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Around the same time, Henne was also given a breath-o-lyzer test to measure the level of alcohol in his blood. The test results revealed that the petitioner's level of intoxication was .17. Under Illinois law, a presumption of intoxication arises on a reading of .10 or more.

A partially empty bottle of brandy and a billfold dropped from inside the car when Henne was stopped on the driving charge. The billfold contained identification materials for both Henne and one Robert Cretney. Later, the state troopers were led to believe that Henne had recently escaped from jail. Accordingly, Detective Bales of the Illinois State Police came to speak with Henne on the morning after Henne's arrest. Bales was told by the state troopers that Henne had previously been informed of his Miranda rights.

At first Henne did not respond when Bales identified himself, sought to verify the petitioner's identity, and indicated that he was looking for Cretney, who was then thought missing. Then Henne requested a cigarette and asked in essence whether two other police officers could leave the room. The other officers did leave. Bales then asked if Henne "was the Willie Henne who escaped from the Carroll County jail and if he knew his constitutional rights." Henne responded, "Yeah, those motherfuckers railroaded me."

The petitioner made a number of incriminating statements during further discussion with Bales. Eventually Henne led several officers to Cretney's body, which was located in a corn field. Cretney had been killed by a hatchet wound. The state trial court denied Henne's motion to suppress his statements and the physical evidence obtained therefrom. This determination was affirmed on appeal.

Henne raises the following claims on this appeal: (1) the district court's findings that he was capable of understanding his Miranda rights when they were administered are clearly erroneous; (2) the district court's findings that he knowingly and voluntarily waived his Miranda rights and that his statements were voluntarily made are clearly erroneous; (3) both the petitioner's statements and certain physical evidence should have been suppressed at his trial, since both were obtained as a result of the assertedly unlawful interrogation; (4) the admission at trial of the petitioner's statements and of the physical evidence was not harmless beyond a reasonable doubt.

I. EFFECT OF WAINWRIGHT v. SYKES

After the submission of briefs and oral argument in this case, the United States Supreme Court handed down its decision in Wainwright v. Sykes, --- U.S. ----, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In light of certain factual similarities between Wainwright and the instant case, we turn first to a determination of what, if any, effect Wainwright may have on Henne's federal habeas corpus application. Even though the district court could not have addressed this question because of the timing of the Wainwright decision, we are obligated to do so. United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1293 (7th Cir. 1976), cert. den. --- U.S. ----, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977).

In Wainwright, a state prisoner brought a federal habeas corpus in the district court, asserting that his statement to the effect that he had committed a murder should not have been admitted at his trial because of his lack of understanding of the Miranda warnings. There were references at Sykes' trial to his consumption of alcohol and his possible intoxication on the day before the shooting. Sykes did not raise his Miranda claim at his state court trial or on the appeal of his conviction for third-degree murder. He subsequently did raise the contention in the state courts through a motion to vacate his conviction; however, this motion was denied by all of the state courts to which it was presented.

The United States Supreme Court found that under Florida law, where Sykes was tried and convicted, Sykes was obligated to raise the challenge to the admissibility of his confession at trial or not at all. Wainwright, --- U.S. at ----, 97 S.Ct. 2497. The Court held that review of the Miranda issue on federal habeas corpus was barred to Sykes "absent a showing of 'cause' and 'prejudice' attendant to (the) state procedural waiver." --- U.S. at ----, 97 S.Ct. at 2506.

Henne's case involves no such failure to raise in the state trial court the Miranda issues presented to the district court and to this court. The record clearly shows that Henne made a timely motion to suppress in the state court and that the trial court held an evidentiary hearing on that motion. Moreover, the Appellate Court of Illinois reviewed and affirmed on the merits the trial court's determination of Henne's suppression motion.

Both Henne and Sykes did raise a Miranda issue, relating to their intoxication, in federal court via the petitions for writs of habeas corpus. The significant similarities between the two cases end there. We find that Wainwright v. Sykes does not bar Henne's application to the federal district court for a writ of habeas corpus.

II. APPLICABILITY OF STONE v. POWELL

The footnotes to the parties' briefs on appeal include a debate on the applicability of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), to the Fifth Amendment claims raised on this appeal. Because this question was not raised or decided in the district court, we must determine initially whether it is now properly before us.

Stone was decided between the time the briefs on the habeas corpus application were filed in the district court and the district court's decision of September 30, 1976. Naturally, then, the briefs below did not raise the question of Stone's relevance which is presented here. The holding in Stone "does not mean that a federal district court lacks jurisdiction over" claims to which it applies. 428 U.S. at 495, n. 37, 96 S.Ct. at 3052. Nonetheless, we feel it is advisable to examine the matter before adverting to the other contentions raised. See United States ex rel. Saiken v. Bensinger, 546 F.2d at 1293-5.

In Stone the Supreme Court held:

" . . . 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 evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, supra, 428 U.S. at 482, 96 S.Ct. at 3046.

It is apparent that the holding in Stone was expressly grounded upon Fourth Amendment search and seizure claims and the exclusionary rule. Stone v. Powell, supra, at 492, 494, 495 fn. 37, 96 S.Ct. 3037. The exclusionary rule has been a judicially created effort to deter police abuses of the Fourth Amendment's proscription against unreasonable searches and seizures. The Court found that this goal is not well attained when a Fourth Amendment claim previously fully and fairly litigated in state court is presented to the federal court as a habeas corpus claim. In addition, the Court observed that evidence obtained in violation of the Fourth Amendment "is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." 428 U.S. at 490, 96 S.Ct. at 3050.

Chief Justice Burger noted in his concurrence that the exclusionary rule, which has the effect of removing reliable evidence from consideration at trial, is in this respect unlike the Fifth Amendment's protection against self-incrimination. Stone v. Powell, supra, at 496, 96 S.Ct. 3037 (Burger, concurring). In Brewer v. Williams, 430 U.S. 387, 413 - 414, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), Justice Powell observed "(w)hether the rationale of Stone should be applied to those Fifth and Sixth Amendment claims or classes of claims that more closely parallel claims under the Fourth Amendment is a question . . . which should be resolved only after the implications of such a ruling have been fully...