Caver v. State of Ala.

• Citation: 577 F.2d 1188
• Decision Date: 08 August 1978
• Docket Number: No. 77-2450,77-2450
• Parties: James T. CAVER, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1188

577 F.2d 1188

James T. CAVER, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 77-2450.

United States Court of Appeals Fifth Circuit.

Aug. 8, 1978.

Richard H. Gill, Montgomery, Ala., for petitioner-appellant.

William J. Baxley, Atty. Gen., C. Lawson Little, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before TUTTLE, MORGAN and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

For the third time James T. Caver's petition for writ of habeas corpus comes to this court. See Caver v. Alabama, 511 F.2d 124 (5th Cir. 1975) (Caver I ); Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1976) (Caver II ); see also Caver v. State, 50 Ala.App. 181, 277 So.2d 926 (1973); White v. State, 48 Ala.App. 334, 264 So.2d 565 (1972). We affirm the district judge's compliance with our mandate in Caver II, and finding that Caver is not otherwise entitled to relief, we affirm the denial of the writ.

I. Facts and Prior Proceedings

Around midnight of Saturday, September 28, 1968, two armed men robbed a cafe in Anniston, Alabama, and fatally shot the proprietor. On Monday, September 30, Caver and Jerry White were arrested, without a warrant, at White's residence. A lineup and voice identification procedure was conducted that same day in the absence of counsel, which resulted in identifications of Caver and White as the perpetrators of the crime.

Caver and White were both convicted of second degree murder on February 17, 1969, after a joint trial. Prior to trial, defense counsel filed a motion to suppress the identification testimony since it was the product of an unduly suggestive lineup conducted in the absence of counsel, and during trial he objected to the admission of the identifications. The trial court denied his motion, overruled his objections, and let the evidence in. White raised the issues of his identification being the product of a suggestive and counselless lineup on direct appeal, and his conviction was affirmed. White v. State, 48 Ala.App. 334, 264 So.2d 565 (1972). Although the Alabama Court of Criminal Appeals originally decided to reverse White's conviction on the ground that the counselless lineup violated United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), on rehearing it affirmed the conviction due to the intervening decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The court noted that prior to the lineup White was being held on a charge of vagrancy and was not then charged with the murder offense for which he was convicted. Therefore, it held that under Kirby the right to counsel had not attached at the time the lineup was conducted since the initiation of judicial criminal proceedings for the murder charge had not yet occurred.

Caver did not appeal his conviction directly, but he did attack it collaterally in October 1971 by filing a petition for a writ of error coram nobis in the court that convicted him. In his petition Caver attacked the lineup as being unduly suggestive and because it was conducted without counsel, and he also argued that his vagrancy arrest was a pretext making it illegal and the identification evidence it led to inadmissible. The trial court held that the lineup issues raised by Caver were not cognizable on writ of error coram nobis, and the court refused to reach the issue of the validity of the vagrancy arrest. The Alabama Court of Criminal Appeals affirmed the denial of the writ, Caver v. State, 50 Ala.App. 181, 277 So.2d 926 (1973), stating:

Although we are convinced that under the within facts and circumstances none of the above enumerated grounds can be properly raised by Petition for Writ of Error Coram Nobis, we take note of the fact that these questions were duly raised on appeal by Jerry White, co-defendant with Appellant, and all of said contentions were resolved by this Court in favor of the State of Alabama, and against White. White v. State, 48 Ala.App. 334, 264 So.2d 565.

We have considered the entire record as required by Title 15, Sec. 389, of the Alabama Code of 1940, Recompiled 1958, and conclude that the trial court committed no error in denying Appellant's writ.

277 So.2d at 927.

In September 1973 Caver filed a petition for writ of habeas corpus in federal district court raising the issues (i) whether his arrest for vagrancy was a pretext, so as to make evidence subsequently obtained through a stationhouse voice identification procedure inadmissible, and (ii) whether he was subjected to a counselless lineup which was unnecessarily suggestive and which led to irreparable misidentification. The district court initially denied the writ without holding a hearing and without having the full state court record before it. In Caver I we vacated and remanded for an evidentiary hearing to permit the proper factual development of Caver's contentions. On remand the district court again denied the writ, holding that Caver's rights had not been violated by the arrest since probable cause existed to arrest him for robbery and murder, and holding also that the lineup to which Caver was subjected was not unnecessarily suggestive and did not lead to irreparable misidentification. In Caver II we affirmed the holding that the lineup was not unduly suggestive. However, we again found it necessary to remand. Rather than reviewing the holding that Caver's arrest was legal, we directed the district court to consider, in light of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), whether the state of Alabama had failed to provide Caver with an opportunity for full and fair litigation on his claim that his voice identification was the product of an illegal arrest. On its third go-round, the district court determined that Caver had been provided with an opportunity for full and fair litigation of his fourth amendment claim, and again it denied the writ.

II. The Stone v. Powell Issue

As the case now stands, the sole remaining ground for relief asserted in Caver's petition for habeas corpus is that the voice identification obtained at his lineup should have been suppressed at trial since it was the product of a pretextual arrest. The district court found, and the state apparently has conceded, that at the time Caver was arrested without a warrant there was insufficient probable cause to arrest for vagrancy. If the arrest was an illegal arrest for vagrancy, the identification evidence obtained during the period of illegal detention should have been suppressed at trial. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969). Since this ground for relief arises under the fourth amendment exclusionary rule, however, our power to grant habeas corpus relief depends on whether Caver was afforded a full and fair opportunity to litigate this issue in the state courts of Alabama. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1976).

In Stone v. Powell, the Supreme Court held:

(W)here 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.

428 U.S. at 482, 96 S.Ct. at 3052 (footnotes omitted). This circuit has interpreted "full and fair consideration" of a fourth amendment claim to include at least one evidentiary hearing in a trial court and the availability of meaningful appellate review when there are facts in dispute, and full consideration by an appellate court when the facts are not in dispute. O'Berry v. Wainwright 546 F.2d 1204, 1213 (5th Cir. 1977); see Sosa v. United States, 550 F.2d 244, 249 & n. 4 (5th Cir. 1977).

Caver argues that O'Berry and Sosa hold that the bar of Stone v. Powell becomes operative only after there has been full and fair litigation in the state courts as these cases define. He contends that the mere presence of an opportunity, unavailed of by a defendant, is not sufficient to preclude federal habeas corpus consideration of fourth amendment suppression claims. Under circumstances similar to those in this case, the Second Circuit rejected the argument advanced by Caver. Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc). We also reject his argument. An "opportunity for full and fair litigation" means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.

Caver seizes on one sentence in the Sosa opinion which might appear to lend support to his position. That sentence, referring to O'Berry states:

There, we held that the "opportunity for full and fair consideration" must include at least one evidentiary hearing in a trial court and one decision by an appellate court which, if "presented with an undisputed factual record, gives full consideration to (the prisoner's) Fourth Amendment claims." 4

550 F.2d at 249 (footnote quoting O'Berry omitted). However, Sosa was not addressing the issue whether Stone v. Powell requires actual litigation in the state courts but rather was attempting to paraphrase O'Berry. We deem O'Berry to be our guiding authority with respect to the meaning of the quoted sentence. The portion of O'Berry discussed in Sosa clearly was interpreting what a "full and fair" consideration should consist of, not what an "opportunity" would be. In fact, the paragraph in O'Berry immediately following the one quoted in footnote 4 of Sosa...