Boyd v. Mintz, 79-2663

• Decision Date: 29 September 1980
• Docket Number: No. 79-2663,79-2663
• Citation: 631 F.2d 247
• Parties: Rodney T. BOYD, Appellant, v. Ira MINTZ, Superintendent of The New Jersey Adult Diagnostic & Treatment Center, and The State of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 247

631 F.2d 247

Rodney T. BOYD, Appellant, v. Ira MINTZ, Superintendent of The New Jersey Adult Diagnostic & Treatment Center, and The State of New Jersey.

No. 79-2663.

United States Court of Appeals Third Circuit.

Argued May 23, 1980.

Decided Sept. 29, 1980.

Stanley C. Van Ness, Public Defender, Stanford M. Singer (argued), Asst. Deputy Public Defender, Abrams, Lerner, Kisseloff & Kissin, East Orange, N. J., for appellant.

John J. Degnan, Atty. Gen. of N. J., Trenton, N. J., Simon Louis Rosenbach (argued), Deputy Atty. Gen., Division of Crim. Justice, Appellate Section, Princeton, N. J., for appellees.

Before ADAMS, VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This is an appeal from the denial of a petition for a writ of habeas corpus. The sole question presented is whether the appellant was provided with an opportunity for a full and fair litigation of his fourth amendment claim in the state courts, thereby precluding federal collateral relief. We hold that because there was a complete breakdown in the state procedure he was not provided with an opportunity for a full and fair litigation of his fourth amendment claim and therefore will reverse the judgment of the district court.

I.

Rodney T. Boyd was charged in Monmouth County, New Jersey with rape, assault with intent to rape, assault with an offensive weapon, and unlawful possession of a weapon. On August 23, 1976, he was arraigned on the indictment before the Hon. Patrick J. McGann, Jr., Judge of the New Jersey Superior Court, and was represented by the Office of the Public Defender of New Jersey, Monmouth County Region for the purposes of arraignment only. Judge McGann informed Boyd that he would be provided with a form to apply for formal representation by the Public Defender. Following arraignment, Boyd was held in the Monmouth County Jail.

On September 17, Boyd was interviewed by an investigator of the Public Defender's Office. On September 21, 1976, the form completed by Boyd and entitled "Declaration of Indigency and Application for Representation" ("Form 5A") was received by the Public Defender. Following the requisite indigency investigation, Boyd was accepted as a Public Defender client and was interviewed extensively on October 5, 1976. At that time, he described an allegedly warrantless search of his home during which the police had seized certain items of clothing allegedly worn by the complaining witness, the rope with which she allegedly had been tied, a .38 caliber pistol, and a knife. He also stated that the complaining witness had since left the jurisdiction and would not be available to testify for the State at trial.

On October 6, the Public Defender filed a motion on behalf of Boyd to suppress. New Jersey Court Rule 3:5-7(a) required motions to suppress to be made within thirty days after the defendant pleads to the indictment. The motion to suppress was denied with prejudice and without evidentiary hearing or inquiry into the merits because the motion, which had been filed fourteen days late, was not accompanied by a formal application to enlarge the time within which the motion could be brought. Sometime after January 1, 1976, the Assignment Judge of Monmouth County had instituted a policy of requiring formal applications for extensions. Prior to that time, a motion to enlarge the time was argued on the return date of the motion to suppress.

On December 7, Boyd pleaded guilty to the rape charge. The plea was entered in accordance with a plea bargain under which the State agreed to move the dismissal of the remaining counts of the indictment, and of an additional outstanding indictment, and to recommend an indeterminate commitment in the New Jersey Adult Diagnostic and Treatment Center, not to exceed ten years. On February 18, 1977, Boyd was so sentenced. However, due to problems concerning his assignment to the Center, ¹ it was necessary to renegotiate the plea. Therefore, on February 25, Boyd withdrew his plea of guilty of rape and pleaded guilty to assault with intent to rape. The other charges were dropped and Boyd was convicted and sentenced to an indeterminate commitment at the Center.

On appeal, the Superior Court, Appellate Division affirmed the dismissal of the motion to suppress. ² A petition for certification was denied by the Supreme Court of New Jersey on December 19, 1978. Boyd then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Following an evidentiary hearing, the petition was denied. This appeal followed. ³

II.

Under Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976), we may not consider fourth amendment challenges in the habeas corpus setting "where the State has provided an opportunity for full and fair litigation" of the fourth amendment claim. This case requires us to give meaning in this factual context to the Supreme Court's phrase "an opportunity for full and fair litigation." The appellant argues that no opportunity effectively was provided him. An explanation of the district court's approach is helpful to an understanding of this case.

The district court, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), concluded that Boyd's failure to file his motion to suppress within the thirty day limitation of New Jersey Court Rule 3:5-7(a) did not "counsel against" habeas review. In Sykes, a state prisoner sought habeas relief on the ground that he had not understood the Miranda rights before making a statement. The Supreme Court held that the alleged deprivation of a federal constitutional right in state proceedings on independent state procedural grounds might not bar federal habeas review where the petitioner shows "cause" for the procedural default and "prejudice" from the abrogation of the federally-guaranteed right. The district court in this case, applying the rule in Sykes, concluded:

Counsel has explained to this Court's satisfaction why, with slightly more than one business day from petitioner's application to the running of the thirty day time limit of R. 3:5-7(a), they were unable to file a timely motion. Furthermore, I cannot believe that Judge Lane's new policy on applications to enlarge was so firmly entrenched as the State claims. In sum, counsel had adequate cause for late filing, and also for failure to properly move to extend the period. There was a genuine question whether the victim would have been available to testify at trial. If she were not, admission of the evidence seized in the warrantless search would certainly be prejudicial under even the most stringent standard. See Collins v. Auger, 577 F.2d 1107, 1110-1111 (8th Cir. 1978), (cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979)). Even if the witness were available, the value of the items seized for corroboration or impeachment purposes clearly rises to the necessary level of prejudice. See Sallie v. North Carolina, 587 F.2d 636, 639 (4th Cir. 1978). Thus, Wainwright is no bar to consideration of this petition.

Boyd v. Mintz, Civ. No. 79-1258 (D.N.J. July 27, 1979) at 3-4, reprinted in App., at 38a-39a. ⁴

The court nevertheless denied relief because it believed that Stone v. Powell precluded consideration of the fourth amendment claim. It held that the state provided Boyd an opportunity to challenge evidence on fourth amendment grounds via N.J.Ct.R. 3:5-7(a), the contemporaneous objection rule which requires that motions to suppress be made within thirty days after the defendant pleads to the indictment.

We turn then to the issues presented here. Boyd argues that "Stone v. Powell simply cannot be construed to mean that 'opportunity' requires only the bare provision for procedures by which one can litigate a fourth amendment claim." Brief of Appellant at 10. Rather, he argues, Stone v. Powell requires actual litigation in state court of the constitutional claim. Courts that have considered this question have all rejected Boyd's argument.

In Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978), Stone v. Powell was construed to preclude federal habeas corpus relief for fourth amendment claims whether or not the defendant avails himself of that opportunity. The court bottomed its holding on Stone 's premise that "federal habeas corpus relief based on the application of the exclusionary rule, when the state courts had already afforded the opportunity for full and fair litigation of the issue, would make a minimal contribution to the effectuation of fourth amendment rights compared to the substantial societal costs associated with exclusion of otherwise probative evidence." Id. at 1192. The court then stated:

If police officers who are conducting a search or making an arrest are aware that the state criminal justice system provides an opportunity for full and fair litigation of fourth amendment suppression claims, the policy underlying the exclusionary rule will be served. That a defendant later at trial might choose not to assert his fourth amendment claim could not remove the system's deterrence to police misconduct.

Id. at 1192-93.

Likewise, in Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (in...