Katschor v. Grayson

• Citation: 9 F.3d 108
• Decision Date: 28 October 1993
• Docket Number: No. 93-1009,93-1009
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Paul Carl KATSCHOR, Petitioner-Appellant, v. Henry GRAYSON, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 108

9 F.3d 108

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Paul Carl KATSCHOR, Petitioner-Appellant, v. Henry GRAYSON, Respondent-Appellee.

No. 93-1009.

United States Court of Appeals, Sixth Circuit.

Oct. 28, 1993.

Before: MILBURN and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

Paul Carl Katschor, an inmate at the Egeler Correctional Facility in Jackson, Michigan, appeals the district court's December 4, 1992 Opinion and Order Dismissing Petitioner's Habeas Corpus Petition. We affirm the district court for the following reasons.

I.

On February 15, 1975, two men robbed the Park Grove Lounge in Detroit, Michigan. There were approximately 12 people in the lounge when the two men arrived at about 10:20 p.m. After each of the men ordered two Budweiser beers and V.O. whiskey chasers, one of the men (later identified by the patrons as petitioner Paul Carl Katschor) pointed a gun at the piano player and announced a robbery. The other man (later identified by witnesses as Robert Elmer Williams, Jr.) jumped over the bar and took money from the cash register. After firing a shot into the ceiling and announcing that "we mean business," the men robbed many of the patrons at gunpoint and forced Jean Zawacki, the owner of the lounge, to open the safe in the back room. The robbers then ordered the patrons into the kitchen and fled. Katschor and Williams were subsequently arrested while drinking Budweiser beers and V.O. whiskey chasers in Caps Bar in Detroit.

Twelve eyewitnesses to the robbery testified at trial. Five of the witnesses, including Jean Zawacki, identified both Katschor and Williams. Four of the witnesses did not identify either defendant. Three witnesses identified Williams as one of the robbers but were unable to identify the petitioner. Zawacki testified that the two men stood out because they were much younger, and more casually dressed, than the lounge's usual clientele.

Detroit police officer James Provato testified that he went to the lounge immediately after the robbery and retrieved a beer glass, a shot glass, and two beer bottles that the defendants were drinking from prior to the robbery. The glasses and bottles were later examined for latent fingerprints.

Detroit police officer James Kelly testified as a fingerprint expert. Kelly compared the latent prints on the glasses and bottles with petitioner's fingerprint exemplar made at the time of his arrest and identified petitioner's fingerprints on the beer and shot glasses. Katschor's attorney did not object to the admission of the fingerprint exemplar taken by Detroit police officer James Lindsay following petitioner's arrest.

Katschor offered numerous witnesses to support his claim that he was stuck in the snow in his sister's driveway when the robbery occurred. Though the petitioner did not testify, Williams denied that he was in the Park Grove Lounge that evening and testified that he was drinking Budweiser beer and V.O. whiskey chasers the day he was arrested because the petitioner bought the drinks for him. The jury nevertheless found both defendants guilty on all counts.

On October 5, 1976, the trial court judge sentenced Katschor to four concurrent terms of 40 to 60 years imprisonment to be served after a previously imposed 15 to 40 year sentence for armed robbery.

Katschor's conviction and sentence were affirmed on direct appeal. On July 6, 1979, the Michigan Supreme Court denied the petitioner's application for delayed leave to appeal.

Katschor subsequently filed his petition for a writ of habeas corpus in the district court on August 23, 1991, claiming ineffective assistance of counsel and the trial court's failure to grant him a continuance prior to trial. The district court judge referred the matter to a magistrate who, on September 28, 1992, recommended that Katschor's petition be denied. Katschor timely objected to the magistrate's recommendation. The district court dismissed Katschor's habeas petition after reviewing, de novo, those portions of the magistrate's Report and Recommendation that the parties objected to.

Katschor thereafter filed a timely notice of appeal challenging the district court's determinations.

II. Ineffective Assistance of Counsel Claim

Katschor maintains that his trial counsel rendered ineffective assistance because he failed to object to the admission of petitioner's fingerprint exemplar, made following his arrest, as the tainted fruit of a warrantless arrest made without probable cause.

To establish ineffective assistance of counsel, Katschor must prove that his attorney's deficient performance prejudiced his defense rendering the trial unfair and the result unreliable. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) ("Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice."). A reviewing court's scrutiny of counsel's performance is highly deferential. Strickland v. Washington, 466 U.S. at 689.

Though it is undisputed that no warrant had been issued for Katschor's arrest, the police arrested the petitioner at the Caps Bar and fingerprinted him at the police station. These fingerprints, when compared to the fingerprints found on the glasses and bottles at the Park Grove Lounge, placed the petitioner at the crime scene and corroborated the testimony of the prosecution's eyewitnesses. Because fingerprints taken at a police station may be suppressed as the tainted fruit of an illegal arrest if the prints were obtained following a warrantless arrest made without probable cause, Katschor argues that the police lacked probable cause to arrest him at the Caps Bar merely because he and Williams were drinking Budweiser beer and V.O. whiskey chasers.

The respondent, in turn, argues that the petitioner's claim cannot be resolved with the sparse record now before us because "the legality of the arrest was not put in dispute [and] evidence was not presented by the prosecution to establish probable cause." Appellee's Brief at 7-8. Because the magistrate and the district court judge properly concluded that the petitioner was not entitled to habeas relief because he cannot establish prejudice, we need not address Katschor's probable cause claim.

The magistrate and the district court judge concluded that it was irrelevant whether Katschor could suppress the fingerprint exemplar taken following his arrest at the Caps Bar because the state possessed numerous fingerprint exemplars (taken following petitioner's seven previous arrests) which would have been admissible at trial under the inevitable discovery doctrine discussed in Nix v. Williams, 467 U.S. 431 (1984).

Though Katschor maintains that but for his illegal arrest the police would not have known his identity, the petitioner's identity is not a fruit of the poisonous tree which may be suppressed. See United States v. Crews, 445 U.S. 463, 474 (1980) (a defendant "is not himself a suppressible 'fruit,' and the illegality of his...