Griffin v. Rose

• Decision Date: 02 October 1981
• Docket Number: No. Civ-1-81-126.,Civ-1-81-126.
• Citation: 546 F. Supp. 932
• Parties: Charles Frank GRIFFIN, Petitioner, v. James ROSE, Warden, Tennessee State Penitentiary and William M. Leech, Jr., Attorney General, State of Tennessee, Respondents.
• Court: U.S. District Court — Eastern District of Tennessee

546 F. Supp. 932

Charles Frank GRIFFIN, Petitioner, v. James ROSE, Warden, Tennessee State Penitentiary and William M. Leech, Jr., Attorney General, State of Tennessee, Respondents.

No. Civ-1-81-126.

United States District Court, E. D. Tennessee, S. D.

August 24, 1981.

On Motion to Alter or Amend October 2, 1981.

John R. Seymour, Chattanooga, Tenn., for petitioner.

Robert L. Jolley, Jr., Senior Asst. Atty. Gen., Nashville, Tenn., for respondents.

MEMORANDUM

FRANK W. WILSON, Chief Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which the petitioner seeks to set aside his conviction and sentence in the case of "State of Tennessee v. Charles Frank Griffin," Docket No. 134985 in the Criminal Court for Hamilton County, Tennessee. On July 15, 1977, the petitioner was convicted of armed robbery by a jury upon a plea of not guilty and received a life sentence. The conviction was appealed to the Tennessee Court of Criminal Appeals which affirmed the conviction on April 19, 1978. The petitioner further appealed the conviction to the Tennessee Supreme Court which affirmed the judgment of the trial court on August 18, 1980. 604 S.W.2d 40 (Tenn. 1980). A petition to rehear was denied.

The petitioner seeks federal habeas corpus relief based upon the following grounds:

(1) The petitioner was denied his right to be free from an illegal search and seizure in violation of the Fourth and Fourteenth Amendments;

(2) The petitioner was denied due process and the right to counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution as he was not advised of his right to counsel prior to an identification lineup;

(3) The petitioner was denied due process of law as the trial court allowed to be introduced into evidence a lineup identification which was unduly suggestive and which was the fruits of the illegal arrest; and

(4) The petitioner's confession was obtained through coercion and was thus unconstitutionally admitted at trial.

This lawsuit is presently before the Court upon the respondents' response (Court File No. 8), respondents' motion to dismiss or in the alternative for summary judgment (Court File No. 9), petitioner's motion that Exhibit 4 be supplemented by further portions of existing transcript (Court File No. 14), and portions of the state court record, consisting of the state appellate court opinions, the state appellate court briefs for the petitioner and the State of Tennessee, and portions of the trial transcript (Court File No. 10).

The record shows and it is undisputed that the petitioner has exhausted his state court remedies with respect to the grounds asserted as a basis for relief. Therefore, these issues are properly before the Court. Picard v. Conner, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b).

The Court finds that the record is adequate for a decision to be made on the issues presented, and since there are no material facts in dispute, an evidentiary hearing is not required and the matter will be decided on the motion for summary judgment filed by the respondents (Court File No. 9). See Hernandez v. Schneckcloth, 425 F.2d 89 (9th Cir. 1970); Rule 56, Federal Rules of Civil Procedure.

The Court will initially consider petitioner's first ground asserted as a basis for relief. The petitioner contends that he was illegally arrested and searched in violation of the Fourth and Fourteenth Amendments to the United States Constitution and that the evidence seized incident to the illegal arrest and search was improperly admitted at trial. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the Supreme Court held 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 unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. at 3052. The petitioner concedes the applicability of Stone v. Powell, supra, but alleges that habeas corpus review of his claim is not precluded under Stone because he was not afforded "an opportunity for full and fair litigation" of the Fourth Amendment issue in state court, see Id. at 494, n.37, 96 S.Ct. at 3052, n.37, because the Tennessee Supreme Court upheld the arrest on a different legal basis than the lower courts.

The state court record reveals that prior to trial the petitioner moved to suppress the evidence obtained as a result of the arrest and subsequent search alleging that he had been arrested illegally. (Ex. 4, p. 1). The trial court overruled the motion finding there was probable cause for an arrest. (Ex. 4, p. 80). Subsequently at trial petitioner's counsel objected to the introduction of the evidence discovered incident to the arrest and search and objected to the lineup testimony. The jury was ordered to leave the room and an evidentiary hearing was held on the legality of the arrest and lineups. (Ex. 4, p. 182). After hearing various witnesses, including the petitioner, the trial court overruled the motion, concluding that the arrest was legal and that the identification procedure used to identify the petitioner was not unduly suggestive. (Ex. 4, p. 191-193). These issues were also raised as assignments of error to the Tennessee Court of Criminal Appeals which found probable cause for the warrantless arrest and upheld the admission of the lineup testimony. The Tennessee Supreme Court granted certiorari to specifically address the issue of the legality of the arrest and search. The Tennessee Supreme Court concluded that there was insufficient information known by the arresting officer at the time he stopped the petitioner to constitute probable cause necessary for a full arrest, but upheld the arrest finding there was sufficient probable cause to permit an "investigatory stop" under the doctrine of Terry v. Ohio, 391 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Moore v. Cowan, 560 F.2d 1298 (6th Cir. 1977), cert. den. 435 U.S. 929, 98 S.Ct. 1500, 55 L.Ed.2d 525 (1978), the Sixth Circuit Court of Appeals upheld the district court's refusal to consider appellant's Fourth Amendment claim on habeas corpus review because the appellant had had an opportunity for a full and fair hearing on the claim in the state courts as at trial a motion to suppress the evidence was made and considered and the appellant had raised the issue in the state appellate courts. Id. at 1302. In accordance with Moore is Bradley v. Cowan, 561 F.2d 1213 (6th Cir. 1977), in which the Court of Appeals reviewed the prior state proceeding to determine if the habeas petitioner had been given the opportunity for a full and fair hearing. The Court concluded that such an opportunity had been given as the petitioner had raised the issue before trial by motion to suppress, at trial by objection, on direct appeal after trial and by motion to vacate sentence pursuant to state law.

These cases are similar and controlling in the instant case. The legality of petitioner's arrest and search was raised prior to trial and fully considered by the trial judge; the issue was raised at trial and considered at an evidentiary hearing and the issue was raised in both state appellate courts and fully considered by both courts. It is irrelevant that the Tennessee Supreme Court upheld petitioner's arrest on a different legal theory than the lower courts and on a basis that the petitioner had not specifically addressed; what is important is that the petitioner had an opportunity for a full review of his claim. United States ex rel. Petillo v. New Jersey, 562 F.2d 903 (3rd Cir. 1977); Holmberg v. Parratt, 548 F.2d 745 (8th Cir. 1977). The petitioner was afforded such an opportunity and therefore further review of his Fourth Amendment claim is precluded by Stone v. Powell.

The petitioner's second ground for habeas corpus relief is that he was denied his right to counsel and due process because he was not advised of his right to counsel prior to his identification lineup. The petitioner contends that he was entitled to counsel at the lineup because the right to counsel attaches at the commencement of a criminal prosecution which under Tennessee law was commenced when petitioner was arrested.

The petitioner was arrested about six o'clock one evening and placed in a lineup the next morning (Ex. 4, p. 26). At the evidentiary hearing, police officers testified that prior to the lineup the petitioner was advised of his rights, including the right to counsel. (Ex. 4, pp. 67-304). Petitioner stated he was not sure whether he had been advised of his rights prior to being placed in the lineup, that he could not remember (Ex. 4, p. 26).

Regardless of whether the petitioner was advised of his right to counsel prior to the lineup, petitioner had no constitutional right to counsel at that time. The right to counsel attaches to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings —whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Moore v. Illinois, 434 U.S. 220, 224, 98 S.Ct. 458, 462, 54 L.Ed.2d 424 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). The Supreme Court in Kirby v. Illinois, supra upheld an identification conducted in the absence of counsel shortly after the accused's arrest because "adversary judicial criminal proceedings" had not yet been initiated. 434 U.S. at 227, 98 S.Ct. at 464. Subsequently a majority of the Court in Moore v. Illinois, supra, reaffirmed the holding of Kirby and reiterated the Kirby standard regarding right to counsel. Although in the instant case criminal proceedings had commenced because the petitioner had already been arrested at the time of the lineup, no adversary judicial criminal proceedings had yet occurred. Therefore, petitioner's right to coun...