Chavez v. Rodriguez, No. 76-1016
| Citation | 540 F.2d 500 |
| Decision Date | 26 August 1976 |
| Docket Number | No. 76-1016 |
| Parties | Robert E. CHAVEZ, Plaintiff-Appellant, v. Felix RODRIGUEZ, Warden, New Mexico State Penitentiary, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
David E. Booth, Asst. Federal Public Defender, Albuquerque, N.M., for plaintiff-appellant.
Toney Anaya, Atty. Gen., Andrea Buzzard, Asst. Atty. Gen., Santa Fe, N.M., for defendant-appellee.
Before PICKETT, Senior Circuit Judge, and SETH and McWILLIAMS, Circuit Judges.
Chavez is appealing denial of habeas corpus relief by the United States District Court for the District of New Mexico. We affirm.
Appellant Chavez is an inmate at the New Mexico State Penitentiary as a result of his 1974 conviction for possession of heroin. Sentence imposed March 21, 1974 was to not less than one nor more than five years imprisonment. Judgment and sentence were affirmed on direct appeal. State v. Chavez, 87 N.M. 180, 531 P.2d 603 (1975). The instant proceedings were initiated August 25, 1975 when Chavez filed his habeas corpus petition alleging but one ground for relief which related to the constitutionality of the search which uncovered the heroin for which Chavez stands convicted.
Police officers investigating a shop lifting incident had been furnished the description and license plate number of the car driven by the alleged shop lifter. Ownership of this car was traced to a Mr. Brooks. The officers proceeded to Brooks' place of business where they found both the automobile and Brooks. Upon being informed of the purpose for the police officers' presence, Brooks responded that he had loaned the car to Mr. Chavez, the appellant here, who was upstairs in a room furnished to him by Brooks. The two officers and Brooks proceeded to Chavez' room where Brooks knocked at the door and asked whether Chavez was in the room. Chavez responded with or something similar. Brooks and the two officers then entered the room where the officers observed heroin paraphernalia and suspicious activity on the part of Chavez. The officers also observed a bulge, the approximate size and shape of a pocket knife, in Chavez' pants pocket. They then frisked Chavez, extracted the "bulge" from Chavez' pocket, and determined it to be heroin. Chavez was then arrested. This search is the subject of these proceedings.
Prior to trial, counsel for Chavez filed a motion to suppress admission of the heroin into evidence on the ground that it resulted from an illegal search. A hearing was conducted, after which the motion was denied. The suppression motion was renewed numerous times throughout the trial. The legality of this search and seizure was the sole issue discussed by the New Mexico Court of Appeals in Chavez' direct appeal. State v. Chavez, supra.
As stated, Chavez is continuing his attack on the search and seizure in the instant habeas corpus proceedings. The district court based denial of habeas corpus relief, as did the state courts, on the fact that Chavez had given permission for entry into the room. In bringing the instant appeal Chavez raises two issues: 1) the search and seizure violated his constitutional rights; and 2) the district court erred in denying the § 2254 petition without a hearing.
This appeal need not be decided on its merits. The United States Supreme Court, on July 6, 1976, decided W. T. Stone, Warden v. Lloyd Charles Powell, --- U.S. ----, 96 S.Ct. 3037, 49 L.Ed.2d --- (1976) holding 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...
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