Doleman v. Muncy

• Decision Date: 29 June 1978
• Docket Number: No. 77-2150,77-2150
• Citation: 579 F.2d 1258
• Parties: Darnell Benjiman DOLEMAN, Appellant, v. R. M. MUNCY, Superintendent, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1258

579 F.2d 1258

Darnell Benjiman DOLEMAN, Appellant, v. R. M. MUNCY, Superintendent, Appellee.

No. 77-2150.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 8, 1978.

Decided, June 29, 1978.

Adrienne E. Volenik, Maryland Juvenile Law Clinic, Baltimore, Md. (Peter S. Smith, Maryland Juvenile Law Clinic, Baltimore, Md., and Roger J. Myerberg, Third Year Law Student, on brief), for appellant.

James E. Kulp, Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge:

Petitioner, Darnell B. Doleman, filed a Pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia, at Alexandria, naming R. M. Muncy, the Superintendent of Prisons, and the Attorney General of the State of Virginia as respondents. ¹ The district court ordered the petition filed but then dismissed it for two reasons.

First, the court held that Doleman's Fourth Amendment claims were barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Second, it held that Doleman had not pleaded sufficient facts in his petition in order to demonstrate that a pretrial "showup" was unconstitutionally prejudicial. Although the suit was dismissed, the court did give Doleman leave to file an amended petition within fifteen days to set forth sufficient facts to make out a constitutional claim.

Doleman responded by filing a second Pro se petition which reiterated the same two grounds which were contained in the first petition in a slightly amplified form. The district court judge filed the second petition out-of-time and construed it as an amendment to the earlier petition. Upon this record, the court renewed its earlier rulings. First, the search and seizure claim was precluded from federal consideration by Stone v. Powell, supra. Second, any error predicated upon the pretrial "showup" was not constitutionally prejudicial since Doleman's state court trial on armed robbery charges was conducted before a judge and not a jury.

Doleman filed a timely notice of appeal. Counsel was appointed and the case has been fully briefed and argued orally. We affirm in part, reverse in part, and remand with directions.

I. FACTS

From what we can discern from the record in this case, ² at some unspecified time After the vehicle was stopped near a bridge, Doleman and his two companions were standing in the "search" position with their backs to the unnamed witness. ⁶ The police ordered the trio to turn around. According to the petition, there were no other suspects present at this showup near the bridge. "There were no other blacks in the vicinity."

                prior to June 25, 1975, an armed robbery occurred somewhere in Arlington County, Virginia.  Doleman, a black, and two other black companions were in a vehicle which was stopped by a police officer or officers.  3  The police, with guns drawn, ordered the occupants out of the vehicle and told them to raise their hands.  4  At most, Doleman alleges that in this case, unlike Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the observations of the police officer "in no way indicated any suspicious behavior on the part of Doleman and companions."  5
                

Doleman then specifically alleged that the "(w)itness had been told by the police that if he did not positively identify the subjects they would be released." (Second Petition, at 5-6; Record, at 15, 16). The allegation in his first petition was similar: "(t)he police told the Victim if he did not identify 'these' men they would be let go." (First Petition, at 4; Record, at 6). (Emphasis added). Following a view of the suspects for "several minutes," the defendants were apparently identified as the armed robber or robbers. ⁷

At some juncture in this narrative, the police conducted a warrantless search of the vehicle in which the trio was riding and May have located a weapon or weapons which may have been introduced into evidence over Doleman's motion to suppress during the state armed robbery trial. ⁸

Doleman's state criminal trial was conducted before the Circuit Court of Arlington County, Virginia, in a trial to the court. At that trial, the "witness" who participated in the showup presumably testified. Doleman alleges that this witness "was allowed to testify at trial as to his prior identification on the Bridge and to identify the defendants at trial" which also was admitted over Doleman's motion to suppress. (Second Petition, at 5, 2; Record, at 15, 12). ⁹

This trial resulted in a conviction of Doleman ¹⁰ on the charge of armed robbery on June 25, 1975, and a sentence of twelve years. He petitioned the Supreme Court of Virginia for review, but it was denied on April 12, 1976. Thereafter, he petitioned for a writ of certiorari in the Supreme Court of the United States, but this was also denied on November 1, 1976. Doleman v. Virginia, 429 U.S. 929, 97 S.Ct. 336, 50 L.Ed.2d 299 (1976).

On February 28, 1977, Doleman filed his first petition for a writ of habeas corpus in the Eastern District of Virginia, which petition, as amended, and dismissed, led to this appeal.

II. STONE v. POWELL

The district court holding in this case presents an opportunity for us to formally address ourselves to the Supreme Court's holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). That decision presents two related problems for consideration. First, what is the substantive reach of Stone ? Second, procedurally, how is the substantive reach of Stone to be applied in this and future cases?

A. THE HOLDING IN STONE

The ultimate holding in Stone was presaged by the concurring opinion of Mr. Justice Powell in Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Although the majority of the Court in Schneckloth focused on the consensual search problem under the Fourth Amendment, 412 U.S. at 248-49, 93 S.Ct. 2041, Mr. Justice Powell, the Chief Justice, and Mr. Justice Rehnquist all noted that the proper scope of federal collateral habeas review of a state prisoner's Fourth Amendment claims raised an issue of importance to our system of criminal justice, and although they joined in the majority opinion, Justice Powell filed a separate concurring opinion.

The concurrence argued that neither history, nor the purpose of the writ of habeas corpus, nor the desired prophylactic utility of the exclusionary rule as applied in Fourth Amendment claims, nor any sound reason relevant to the administration of justice justified a federal court, on collateral review of a state court conviction, to review asserted Fourth Amendment claims with the application of the exclusionary rule in precisely the same manner as it would or could have been utilized on direct review. 412 U.S. at 251, 93 S.Ct. 2041. The concurring opinion clearly distinguished between those claims which bear upon the guilt or innocence of an accused, such as a claim of ineffective assistance of counsel or some claimed violation of the privilege against self-incrimination, which should be cognizable under a traditional application of habeas principles, and those claims which rarely bear upon innocence, such as traditional Fourth Amendment claims. The concurring First. "Prisoners raising Fourth Amendment claims collaterally usually are quite Justly detained. The evidence obtained from searches and seizures is often 'the clearest proof of guilt' with a very high content of reliability." 412 U.S. at 258, 93 S.Ct. at 2063.

Justices would have held that federal collateral review of a state prisoner's Fourth Amendment claims should have been confined solely to the question of "whether the petitioner was provided a fair opportunity to raise and have adjudicated the (Fourth Amendment) question in state courts." 412 U.S. at 250-51, 93 S.Ct. at 2059. This view was based upon a number of factors, but most significantly upon certain key factors. See also 412 U.S. 274-75, 93 S.Ct. 2041.

Second. "When raised on federal habeas, a claim generally has been considered by two or more tiers of state courts. . . . The task which federal courts are asked to perform on habeas is thus most often one that has or should have been done before." 412 U.S. at 259, 93 S.Ct. at 2064.

Third. Pragmatically, a broad federal habeas review too often occurred in a complex factual setting with the relevant events occurring many years earlier. 412 U.S. at 263, 93 S.Ct. 2041. Consequently, the concept of "finality" in criminal cases was being frustrated with attendant adverse effects falling upon society and our penal system. 412 U.S. at 261-62, 93 S.Ct. 2041. And, any deterrent function of the exclusionary rule became "greatly attenuated" when years later, the claim surfaced on collateral review. 412 U.S. at 269-70, 93 S.Ct. 2041.

Fourth. The constant specter of federal district court collateral review and re-review of state court interpretations and applications of the Fourth Amendment "prompted no small friction between state and federal judiciaries." 412 U.S. at 263, 93 S.Ct. at 2066.

Based upon a much more exhaustive analysis than has been detailed above, Mr. Justice Powell stated quite clearly that:

Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim. Limiting the scope of habeas review in this manner would reduce the role of the federal courts in determining the merits of constitutional claims with no relation to a petitioner's innocence and contribute to the restoration of recently neglected values to their proper place in our criminal justice system.

412 U.S. at 266, 93 S.Ct. at 2067.

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