Jennings v. Rees
| Decision Date | 27 August 1986 |
| Docket Number | No. 85-5780,85-5780 |
| Citation | 800 F.2d 72 |
| Parties | David E. JENNINGS, Petitioner-Appellant, v. John REES, Warden, Kentucky State Reformatory, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert D. Monfort, argued, Covington, Ky., for petitioner-appellant.
David Armstrong, Atty. Gen., Frankfort, Ky., and Cicely J. Lambert, argued, for respondent-appellee.
Before KEITH, NELSON and BOGGS, Circuit Judges.
Section 527.040 of the Kentucky Revised Statutes makes it a crime for a convicted felon to possess a handgun. David E. Jennings, who is serving a term of imprisonment in the Kentucky State Reformatory for violation of that statute, petitioned the United States District Court for release on a writ of habeas corpus. It was and is Mr. Jennings' contention that the handgun he was convicted of possessing was seized illegally and should not have been admitted in evidence at his trial. The federal district court held that the seizure was legal and denied the writ of habeas corpus. We agree that the seizure was legal, and we believe that it would have been necessary to deny the writ in any event because of the fact that before convicting Mr. Jennings, Kentucky provided him an opportunity for full and fair consideration of his claim that the handgun should have been excluded from evidence as the fruit of an illegal seizure.
In July of 1982 an apartment occupied by Mr. Jennings came under the surveillance of two Covington, Kentucky, police officers. Noticing a dozen or so people entering the building and leaving after a very short time, the policemen arranged to have a confidential informant go to the apartment and see if he could buy drugs there. He did, returning to the police with five tablets of controlled substances that he said he had bought from David ("Day Day") Jennings.
On the strength of an affidavit executed by a Covington police lieutenant, a warrant was then issued authorizing the search of Mr. Jennings' apartment for drugs and for the marked currency used by the informant in making his purchase. The affidavit, which described the circumstances of the purchase in some detail, stated that "Jennings is a known (and convicted) trafficker of controlled substances...."
When the police executed the search warrant (at 1:15 in the morning) they found Mr. Jennings and two other people in the apartment, along with a quantity of drug tablets, syringes, and a loaded handgun. The gun was hidden between the mattress and box springs of Mr. Jennings' bed. (Illicit drugs are often hidden under mattresses, according to Mr. Jennings' prosecutor, and it is standard procedure for the Covington police to look there when searching for drugs.) Although no gun had been specified in the search warrant, the police chose not to leave Mr. Jennings' loaded weapon behind; it was removed from the apartment, and so, we presume, was Mr. Jennings.
Mr. Jennings was indicted on four counts, the first of which was possession of a handgun by a convicted felon. The handgun count was severed for trial, and on the day before the trial was to begin in Kenton County Circuit Court the trial judge conducted a hearing on the motion filed by Mr. Jennings' lawyer "to suppress certain physical evidence." Counsel confirmed, at the hearing, that he was talking about the handgun, and suggested that the motion to suppress be granted for two reasons: because the seizure of the gun had not been authorized by the warrant, and because the warrant was invalid. Counsel presented extensive argument on the latter point, but none on the former.
The circuit court expressed the view that the issuance of the warrant was justified by the affidavit, but asked the prosecutor to explain how the gun could be considered contraband and how its seizure could be justified when the weapon had not been named in the warrant. The prosecutor replied:
Mr. Jennings' counsel asked the court, in the middle of this explanation, "would you listen to arguments on that?" The court said "Yes." Counsel offered no such arguments, however, stating instead that "I would like to go back and make a brief argument about the structural integrity of the affidavit." The court declined to hear additional argument on the latter point, and after preserving for the record his "position that there is not enough reliable independent information," counsel stated "that's all I have at this time." The court then announced that the trial would begin the next morning and that the weapon would not be suppressed because its seizure was "acceptable."
The jury returned a verdict of guilty and made a recommendation pursuant to which Mr. Jennings was sentenced to a five year term of imprisonment. The conviction was affirmed on appeal. (The separate trial of the remaining counts also resulted in a guilty verdict, but only the conviction on a count charging Mr. Jennings with drug possession was upheld on appeal.)
On September 28, 1984, Mr. Jennings applied to the United States District Court for permission to proceed in forma pauperis. A petition for a writ of habeas corpus was tendered at the same time. The petition asserted that the conviction (on all counts) had been obtained by use of evidence gained pursuant to an unconstitutional search and seizure. On April 22, 1985, after the drug conviction had been affirmed on appeal and the convictions on two other counts had been overturned, Mr. Jennings (represented, once again, by counsel) sought leave to amend the habeas corpus petition to bring in the drug conviction. The motion to amend noted that the original petition "appears to address only issues related to [Mr. Jennings'] conviction for possession of a handgun by a convicted felon."
The motion for leave to amend was denied. Mr. Jennings then filed a second habeas petition, this one dealing solely with the drug conviction. In his second petition Mr. Jennings answered "no" to the question "have you previously filed any petitions, applications, or motions with respect to this judgment ...?"
On recommendation of a magistrate, both habeas petitions were denied by the district court. The order denying the first petition was properly appealed. No appeal was taken from the denial of the second petition. We are now asked to reverse the denial of the first petition not only on the ground that the handgun conviction was secured through evidence obtained in an unconstitutional seizure, but also on the ground that the district court failed to address, in the first proceeding, the constitutionality of the drug conviction. We decline to reverse on either ground.
Taking the subsidiary issue first, it does not seem to us that Mr. Jennings was improperly deprived of an opportunity to challenge the constitutionality of his drug conviction. If, as he now contends, he was entitled to brief that issue in the original habeas case without amending his petition, he should have briefed it. If, as he thought earlier, it was necessary to file a second petition after failing to obtain leave to amend, he was free to file such a petition--and, of course, he did so, and thus had every opportunity to attack his drug conviction in the second habeas proceeding. Having lost there, and having elected not to appeal, he is not entitled to another bite at that apple here.
With respect to the seizure of the handgun, the federal district court rested its denial of habeas relief on "public safety" considerations of the kind held in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), to have justified the New York police in seizing a suspected rapist's loaded handgun before reading him his "Miranda rights." Recognizing the potential...
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