Hussong v. Warden, Wisconsin State Reformatory

• Decision Date: 06 June 1980
• Docket Number: No. 79-1999,79-1999
• Citation: 623 F.2d 1185
• Parties: Brian L. HUSSONG, Petitioner-Appellant, v. WARDEN, WISCONSIN STATE REFORMATORY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1185

623 F.2d 1185

Brian L. HUSSONG, Petitioner-Appellant, v. WARDEN, WISCONSIN STATE REFORMATORY, Respondent-Appellee.

No. 79-1999.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 25, 1980.

Decided June 6, 1980.

Stephen M. Glynn, Milwaukee, Wis., for petitioner-appellant.

Pamela Magee-Heilprin, Wis. Dept. of Justice, Madison, Wis., for respondent-appellee.

Before SWYGERT, CUMMINGS and BAUER, Circuit Judges.

SWYGERT, Circuit Judge.

Petitioner-appellant, a Wisconsin state prisoner, appeals from a decision and order dismissing his petition for a writ of habeas corpus under section 2254, 28 U.S.C. § 2254, in which petitioner alleged that he was in custody in violation of section 2515 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("the federal wiretap statute"), 18 U.S.C. § 2515. The basis for the district court's dismissal was the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). We affirm the dismissal of the petition, but we rest our decision on different grounds. Assuming as we must that the allegations in the petition are true, we hold that petitioner's incarceration in violation of section 2515 of the federal wiretap statute does not meet the required "complete miscarriage of justice" standard required of nonconstitutional violations of federal law in order to be cognizable under the federal habeas corpus statute.

I

In December 1971 the Brown County, Wisconsin District Attorney obtained an order allowing the interception of wire communications of the petitioner, Brian L. Hussong, in order to gain information concerning the homicide of Neil LeFave. Nine days later Hussong was arrested and charged with first degree murder. Asserting that evidence derived from the wiretap had been illegally obtained, Hussong moved to suppress the evidence. It is conceded, for purposes of this appeal, that he received a full and fair opportunity to litigate his suppression claim in the state court. When his motions to suppress were denied, the incriminating evidence was introduced against him at trial. Hussong was convicted of first degree murder and sentenced to life imprisonment. His conviction was affirmed by the Wisconsin Supreme Court. ¹

Hussong filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The petition asserted that Hussong's custody was in violation of section 2515 of the federal wiretap statute, 18 U.S.C. § 2515, because he was convicted on the basis of evidence obtained in violation of section 2518 of the federal wiretap statute, 18 U.S.C. § 2518. ² The following statutory violations were alleged: (1) no probable cause to believe that he had committed the offense of first degree murder, (2) no probable cause to believe that communications concerning that offense would be obtained through the interception, (3) no showing that other investigative procedures had been tried and had failed or reasonably appeared unlikely to succeed or to be too dangerous if tried, (4) no particularized showing establishing probable cause to believe that additional communications would occur after the described communication had been obtained and yet the interception did not automatically terminate after the first communication of the type described was obtained, and (5) failure to minimize the interception of communications not otherwise subject to interception. ³

The district judge dismissed the petition on the basis that Congress in enacting the federal wiretap statute had "not conferred a broader scope on review of claims of illegal surveillance than that provided by the Supreme Court for Fourth Amendment claims in (Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976))" and that Hussong had received the required full and fair hearing in the state court. ⁴ Upon the issuance of a certificate of probable cause, this appeal ensued.

II

We begin by discussing the crucial difference between Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) and the case at bar. In Stone v. Powell, supra, the Supreme Court decided the scope of a judicially-created exclusionary rule, whereas the instant case involves an exclusionary rule of congressional origin.

The exclusionary rule interpreted in Stone was created in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) when the Supreme Court held that implementation of the Fourth Amendment required the exclusion at trial of evidence obtained in an unconstitutional search or seizure. In Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the Mapp exclusionary rule was held cognizable in a federal habeas corpus petition brought by a federal prisoner. The Court noted that its prior decisions had already established that habeas was available to state prisoners alleging that they had been convicted on the basis of evidence obtained in violation of the Fourth Amendment. Kaufman v. United States, 394 U.S. at 225, 89 S.Ct. at 1073. Then seven years later, in Stone v. Powell, supra, the Supreme Court reversed itself as to the availability of habeas for prisoners alleging Fourth Amendment violations. In Stone, two state prisoners had petitioned for the federal habeas corpus relief that was permitted in Kaufman. ⁵ The Stone Court reconsidered the issue decided in Kaufman and held that after a defendant had received a full and fair opportunity to litigate his suppression claim in the state courts, his custody did not violate the Fourth Amendment. The Court was careful to explain that it was deciding the scope of its own exclusionary rule and not the scope of the federal habeas statute. Stone v. Powell, 428 U.S. at 494 n.37, 96 S.Ct. at 3052 n.37.

The instant case presents a different problem because petitioner here seeks habeas corpus relief for an alleged violation of an exclusionary rule that is of congressional rather than judicial origin. The federal wiretap statute, 18 U.S.C. § 2515, provides that evidence derived from wiretaps made in violation of the wiretap statute shall not "be received in evidence in any trial . . .." ⁶ Although the scope of the judicially-created exclusionary rule was determined and redetermined by the Supreme Court on the basis of changing policy considerations, the scope of the exclusionary rule contained in the wiretap statute must be interpreted by the courts according to the principles of statutory construction. ⁷ As we perceive the issue in this case, if a violation of the exclusionary rule in the wiretap statute is not cognizable on habeas, it must be for one or both of two reasons. First, the language or history of the wiretap statute may indicate that violations of section 2515 were not intended to be reviewable on federal habeas corpus (in which case our decision would be based on an interpretation of the exclusionary rule in the wiretap statute). Second, the federal habeas statute, 28 U.S.C. § 2254, which does not contemplate relief for all nonconstitutional violations of federal law, may not provide relief for violations of section 2515 of the federal wiretap statute (in which case our decision would be based on an interpretation of the federal habeas statute).

The district court here and two other district courts have construed the statutory exclusionary rule, section 2515, to be identical in scope with the judicially-created exclusionary rule after Stone v. Powell, supra. Pobliner v. Fogg, 438 F.Supp. 890 (S.D.N.Y.1977); Zagarino v. West, 422 F.Supp. 812 (E.D.N.Y.1976). ⁸ Because habeas review of the judicial rule was precluded in Stone, habeas review of the statutory rule was held similarly unavailable.

We do not agree that the scope of section 2515 can be construed to conform to the holding in Stone. We have examined, as did the district court, the legislative history of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. For the reasons that follow, we do not find that Congress intended to preclude federal habeas corpus relief for violations of the statutory exclusionary rule.

It is true that the Senate Report states that section 2515, 18 U.S.C. § 2515, requiring suppression of evidence obtained in violation of the Act, was not intended "generally to press the scope of the suppression role beyond present search and seizure law. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed.2d 503 (1954)." S.Rep. No. 1097, 90th Cong., 2d Sess. reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2185. In Walder v. United States, supra, the Supreme Court held that illegally obtained evidence could be used at trial to challenge a defendant's credibility where that defendant had "affirmatively resort(ed) to perjurious testimony in reliance on the Government's disability to challenge his credibility." Walder v. United States, 347 U.S. at 65, 74 S.Ct. at 356 (footnote omitted). That case bears on the scope of the exclusionary rule at trial and is not relevant to the issue of collateral review on federal habeas corpus.

Even if we assume that Congress intended to incorporate "present search and seizure law" as to suppression generally, including the availability of review on federal habeas corpus, we cannot agree with the district judge that "(s) ince Congress has essentially incorporated the Fourth Amendment standards into Title III, it follows that the policies underlying Stone apply with as much force to claims for exclusion of evidence brought under (the federal wiretap statute) . . . ." ⁹ In 1968, the law on the availability of habeas relief for state prisoners who alleged Fourth Amendment violations favored allowing the petition. Less than a year after the wiretap statute was enacted, the Supreme Court decided in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) that federal habeas relief under 28 U.S.C. § 2255 was available to federal prisoners alleging...