699 F.2d 424 (7th Cir. 1983), 80-1193, Bailey v. Duckworth

Docket Nº:80-1193.
Citation:699 F.2d 424
Party Name:Frank BAILEY, Jr., Petitioner-Appellant, v. Jack R. DUCKWORTH, et al., Respondents-Appellees.
Case Date:February 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 424

699 F.2d 424 (7th Cir. 1983)

Frank BAILEY, Jr., Petitioner-Appellant,

v.

Jack R. DUCKWORTH, et al., Respondents-Appellees.

No. 80-1193.

United States Court of Appeals, Seventh Circuit

February 14, 1983

Argued Nov. 30, 1982.

Michael B. Nash, Chicago, Ill., for petitioner-appellant.

Bruce L. Kamplain, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before PELL, BAUER, Circuit Judges, and TIMBERS, Senior Circuit Judge. [*]

BAUER, Circuit Judge.

This appeal raises the issue of whether a claim considered for the first time on a petition for rehearing in a state appellate court has been fully and fairly litigated in the state courts. We hold that it has not. Accordingly, we reverse and remand.

Petitioner Frank Bailey, Jr. and his brother Hank were charged with numerous counts of first and second degree burglary. At trial they moved to suppress the evidence seized from Hank Bailey's home, contending that the warrant was not supported by probable cause. This evidence constituted a significant portion of the state's case. The motion was denied and the Baileys were convicted. Thereafter defendants filed a post-trial Motion to Correct Errors, again asserting that the search warrant was improperly issued and that the evidence should have been suppressed. In opposing the motion the state argued, in part, that Frank did not have standing to challenge

Page 425

the warrant. The court denied the motion, but did not refer to the standing issue.

On appeal, the Indiana appellate court reversed the convictions holding that the evidence upon which those convictions were based had been illegally seized. The state then petitioned for rehearing, arguing, for the first time in the appellate court, that Frank had no standing to object to the search of his brother's home. The court denied the petition for rehearing as to Hank but granted the petition as to Frank, reinstating his conviction. After the Indiana Supreme Court refused to hear the case, Frank initiated this habeas action.

The parties agree that a federal habeas court has limited power to review state court proceedings and that the federal court is precluded from reexamining the merits of a fourth amendment claim if the state tribunal has afforded the petitioner an opportunity for full and fair consideration of that claim. They disagree, however, as to the application of these...

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