752 F.2d 918 (3rd Cir. 1985), 84-5138, Morrison v. Kimmelman

Docket Nº:84-5138.
Citation:752 F.2d 918
Party Name:Neil MORRISON, Appellee, v. Irwin I. KIMMELMAN, Attorney General of New Jersey and John J. Rafferty, Superintendent, Rahway State Prison, Appellants.
Case Date:January 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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752 F.2d 918 (3rd Cir. 1985)

Neil MORRISON, Appellee,


Irwin I. KIMMELMAN, Attorney General of New Jersey and John

J. Rafferty, Superintendent, Rahway State Prison,


No. 84-5138.

United States Court of Appeals, Third Circuit

January 18, 1985

Argued Oct. 30, 1984.

Irwin I. Kimmelman, Atty. Gen. of New Jersey, Arlene R. Weiss (Argued), Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellants.

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William E. Staehle (Argued), Bozonelis, Staehle & Woodward, Chatham, N.J., for appellee.

Before GARTH and SLOVITER, Circuit Judges and LORD, District Judge. [*]


JOSEPH S. LORD, III, District Judge, sitting by designation.



This appeal from an order of the district court granting petitioner's habeas corpus petition presents three issues. First, does the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), barring collateral review of a Fourth Amendment claim preclude our consideration of petitioner's Sixth Amendment claim that he was denied effective assistance of counsel? Second, if we may review petitioner's claim, did his "counsel's representation fall below an objective standard of reasonableness", Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)? Third, if so, did the ineffectiveness prejudice defendant under the standard set forth in Strickland v. Washington, supra, 104 S.Ct. at 2068?



In March, 1979, petitioner was convicted in a bench trial in a New Jersey state court of carnal abuse, forcible rape, impairing the morals of a child, and private lewdness in connection with his alleged rape of his fifteen year old employe. During the course of petitioner's trial, the state offered into evidence a sheet which Detective Delores Most testified she had seized from petitioner's bed shortly after the rape allegedly occurred in petitioner's apartment. The search and seizure were non-consensual and warrantless. Police lab technicians later testified that stains on the bed sheet were positive for sperm from a man with petitioner's blood type and that hairs recovered from the sheet were similar to the head hair of both the petitioner and the victim.

Because defense counsel failed to conduct any discovery, he was unaware that the state was in possession of the sheet. He therefore failed to make a timely motion to suppress the evidence before the trial, as required by New Jersey Court Rule 3:5-7(a). When defense counsel moved to suppress during Detective Most's testimony, the trial judge stated that under the state court rules he could no longer entertain the motion. The trial judge also noted that there would have been "a very valid basis for suppression" if the motion had been made in a timely manner. In addition, he reprimanded defense counsel for failing to conduct discovery which would have alerted him to the fact that the state was in possession of petitioner's sheet.

Following his conviction, petitioner unsuccessfully exhausted state remedies. See Morrison v. Kimmelman, 579 F.Supp. 796, 800 (D.N.J.1984). This petition for habeas corpus followed. The district judge properly determined that he was precluded from reviewing petitioner's Fourth Amendment claim under the doctrine of Stone v. Powell, supra. Morrison v. Kimmelman, supra, at 802. However, the district court did consider petitioner's Sixth Amendment claim and found that "based on the unmitigated negligence of petitioner's trial counsel in failing to conduct any discovery, combined with the likelihood of success of a suppression motion had it been timely made," petitioner was deprived of effective assistance of counsel. Id. at 802-03. The court also determined that this deprivation constituted error that was not harmless beyond a reasonable doubt. Id. at 804. The district court ordered that the writ would issue unless the state retried Morrison

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within 90 (ninety) days. This order, however, was stayed by the district court pending determination of this appeal.




The district judge was undoubtedly correct in deciding that Stone v. Powell precludes federal court review of petitioner's Fourth Amendment exclusionary claim. That case held that "where 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 trial." 428 U.S. at 494, 96 S.Ct. at 3052. Petitioner in this case does not argue that New Jersey denied him a full and fair opportunity to litigate his claim. Rather, he argues that his counsel's ineffectiveness prevented him from...

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