Hayden v. Warden, Maryland Penitentiary, No. 10061.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SOBELOFF, BOREMAN and BRYAN, Circuit
• Citation: 363 F.2d 647
• Parties: Bennie Joe HAYDEN, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
• Decision Date: 21 April 1966
• Docket Number: No. 10061.

363 F.2d 647 (1966)

Bennie Joe HAYDEN, Appellant,
v.
WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 10061.

United States Court of Appeals Fourth Circuit.

Argued October 8, 1965.

Decided April 21, 1966.

Petition for Rehearing Denied June 3, 1966.

363 F.2d 648

Albert R. Turnbull, Norfolk, Va., (Court-assigned counsel) Fine, Fine, Legum, Schwan & Fine, Norfolk, Va., on brief, for appellant.

Franklin Goldstein, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

Petition for Rehearing En Banc Denied June 3, 1966.

SOBELOFF, Circuit Judge.

Appellant Hayden is serving a sentence of fourteen years in the Maryland Penitentiary, having been convicted and sentenced in the Criminal Court of Baltimore City in June, 1962, for robbery with a deadly weapon. After a hearing in the District Court on his application for a writ of habeas corpus, relief was denied, and from this action an appeal was taken.

In this court the petitioner's basic contention is that certain evidence admitted at trial was the product of an unconstitutional search and seizure. The state maintains that the search and the seizure were lawful, and urges further that, even if unlawful, petitioner has waived his right to raise the issue in the federal courts because of his failure to object at trial, failure to appeal from the conviction, and withdrawal of his appeal from the state court's denial of post-conviction relief.

I

An armed robbery occurred at eight o'clock on the morning of March 17, 1962, on the premises of the Diamond Cab Company in Baltimore. Two cab drivers saw a man running from the scene and heard shouts of "hold up, stop that man." The cab drivers, proceeding independently, followed the suspected robber to 2111 Cocoa Lane. One of the drivers actually saw him enter the house. The police were immediately notified and in a few minutes arrived at that address. They had been told that the offender was a Negro about 5'8", 25 years old, and wore a light cap and dark jacket.

The police knocked at the door and Hayden's wife answered. The officers

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told her that they had information that a holdup man was in the house. There is some dispute as to whether or not Mrs. Hayden objected to the entry of the officers. However this may be, several officers entered and went to all three floors, and when no man other than Hayden was found in the house, they arrested him. They seized a sawed-off shotgun and a pistol which they found in the flush tank of the toilet, some ammunition, a sweater, and a dark gray cap, found under Hayden's mattress, shotgun shells lying in a bureau drawer, and a man's jacket and trousers with a belt, discovered in a washing machine in the basement. The police, however, found no stolen money

The seized items were admitted in evidence without objection by the defendant's retained counsel. The clothing was used to fix the identity of Hayden as the man seen running from the scene of the crime and into 2111 Cocoa Lane.

Hayden failed to appeal his conviction, but upon his confinement in the Maryland Penitentiary he promptly petitioned the state court for relief under the Maryland Post-Conviction Procedure Act. Relief was denied without the taking of testimony. On appeal from this action the Maryland Court of Appeals remanded the case for an evidentiary hearing with respect to the challenged lawfulness of the search and seizure. After testimony, the post-conviction judge again denied relief, holding "that the search of his home and seizure of the articles in question were proper."

Thereupon, Hayden applied for leave to appeal to the Court of Appeals of Maryland. Before his application was acted upon, however, he requested its withdrawal. The request was granted.¹ He filed the instant habeas corpus petition three months later. His right to appeal to the Court of Appeals of Maryland is now barred by time.

II

A. We deal first with the failure of trial counsel to make a contemporaneous objection to the admission of the seized articles. The state contends that the failure to object at trial constitutes a waiver by Hayden of his right to assert the constitutional claim in a federal habeas corpus proceeding. In order to preclude consideration of the constitutional claim on federal habeas corpus the state must show that Hayden, acting through his attorney, voluntarily relinquished a known right by failing to object at trial² and that the failure to object constitutes an independent and adequate state ground. See Henry v. State of Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), relying on Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).³

363 F.2d 650

See also Dillon v. Peters, 341 F.2d 337, 339 (10th Cir. 1965)

It is unnecessary in this case to reach the question of whether Hayden voluntarily relinquished his constitutional claim, for in the state post-conviction proceedings the Court of Appeals of Maryland did not look upon the failure to object as a bar to his constitutional claim. Instead it remanded the case to the lower court for a determination of the legality of the search and seizure. Hayden v. Warden, Maryland Penitentiary, 233 Md. 613, 195 A.2d 692 (1963). Since the Court of Appeals of Maryland did not interpose the failure to object as a bar to consideration of the merits of the constitutional issue, denial of state post-conviction relief cannot be said to rest on an independent state ground. The District Court was therefore not precluded from considering the constitutional question on its merits. Cf. Henderson v. Heinze, 349 F.2d 67 (9th Cir. 1965); Nelson v. People of State of California, 346 F.2d 73 (9th Cir. 1965); Rhay v. Browder, 342 F.2d 345 (9th Cir. 1965).

When the highest court of a state has declined to invoke an independent state ground and has proceeded to the merits of a federal question, it would be incongruous for a federal court to assert the state ground to shut off its review of the federal question. There appears to be no reason for a federal court to refuse to vindicate a federal claim by a more exacting insistence on state procedural requirements than the state court itself demanded. The so-called independent ground, not having been relied on by the state, is simply irrelevant.

B. With respect to Hayden's failure to prosecute an appeal from his conviction and the withdrawal of his application for leave to appeal from the state post-conviction decision, the District Court determined that no such deliberate bypass occurred as would prevent Hayden from raising in the federal court the constitutional issue of illegal search and seizure. We uphold the District Court's determination. Hayden's letter to the clerk of the Court of Appeals of Maryland requesting withdrawal of his application for leave to appeal displays complete ignorance of both the judicial process and the consequences of not pursuing his judicial remedies in an orderly fashion.⁴ Under these circumstances

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we cannot find error in the District Court's determination of no deliberate bypass. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1963); Pruitt v. Peyton, 338 F.2d 859, 860-861 (4th Cir. 1964); Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 944 (4th Cir. 1964)

III

Turning to the merits of Hayden's petition, we do not disagree with the District Court's determination that the arrest was lawful and the search conducted as an incident thereof constitutionally permissible.

A. Appellant does not strenuously contest the legality of his arrest. He concedes that the officers had probable cause to believe that a felony had been committed and that the felon was hiding in the house. There was testimony that the officers knocked on the door and announced the purpose of their entry. The District Court so found the facts and concluded that regardless of the asserted lack of consent on the part of Mrs. Hayden to the entrance of the police, the officers were within their legal powers in entering in "hot pursuit" of a suspected felon.⁵

Although the appellant concedes the right of the police to conduct a search as an incident to the lawful arrest, he maintains that in its extent the search exceeded constitutionally permissible limits. The testimony showed that when the officers, approximately five in number, entered they knew only that a man suspected of robbery had run into the house. Not finding the suspect on the first floor, one officer proceeded to the basement while others went to the second floor, where they found Hayden. Learning that he was the only male in the house, the police arrested him, and conducted a search.⁶ The arrest and search lasted one hour. In its extent the search did not exceed the broad limits tolerated in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), where the Supreme Court affirmed the validity of an intensive five-hour search of all four rooms of an apartment, undertaken as an incident to a lawful arrest.

B. This brings us to the principal substantive issue presented by this appeal. The petitioner contends that even if the search itself were legal, the articles of clothing seized by the police were "of evidential value only" and that under the principle repeatedly declared by the Supreme Court, items having evidential value only are not subject to seizure and must be excluded at trial. Gouled v. United States, 255 U.S. 298, 310, 41 S. Ct. 261, 65 L.Ed. 647 (1921); United States v. Lefkowitz, 285 U.S. 452, 464-466, 52 S.Ct. 420, 76 L.Ed. 877 (1932). See also Abel v. United States, 362 U.S. 217, 234-235, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098 (1947). The petitioner maintains therefore that under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), the admission of the articles of clothing at his state trial violated his constitutional rights.

It...