Jordan v. Estelle

• Decision Date: 27 April 1977
• Docket Number: No. 76-3456,76-3456
• Citation: 551 F.2d 612
• Parties: Horace Berry JORDAN, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 612

551 F.2d 612

Horace Berry JORDAN, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant.

No. 76-3456

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

April 27, 1977.

John L. Hill, Atty. Gen., Robert E. DeLong, Jr., Asst. Atty. Gen., Joe B. Dibrell, Jr., Asst. Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Ted Redington, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellee.

Horace Berry Jordan, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, CLARK and FAY, Circuit Judges.

PER CURIAM:

Horace Berry Jordan was convicted of armed robbery in state court. On March 23, 1972, Jordan was sentenced to fifty years' imprisonment. Jordan's conviction was affirmed in Jordan v. State, 500 S.W.2d 638 (Tex.Cr.App.1973). Jordan petitioned for state habeas relief based on the introduction at trial of evidence obtained by an allegedly illegal search. The state trial court recommended that the conviction be vacated, but the Texas Court of Criminal Appeals denied relief in an unwritten opinion. Jordan subsequently filed for federal habeas relief pursuant to 28 U.S.C. § 2254. On June 4, 1976, the district court granted relief. On June 6, 1976, the Supreme Court handed down Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The state brought this appeal from the district court's order granting habeas relief. We reverse.

Because Stone v. Powell is retroactively applicable to Jordan's habeas petition, the district court erred in granting relief. Stone held that " where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner 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 482, 96 S.Ct. at 3046. We have held that the rule of Stone is retroactive to a prior granting of federal habeas relief on appeal at the time of the Stone decision. See George v. Blackwell, 537 F.2d 833 (5th Cir. 1976) (per curiam). See also Roach v. Parratt, 541 F.2d 772 (8th Cir. 1976); Bracco v. Reed, 540 F.2d 1019 (9th Cir. 1976). Hence if Jordan received a full and fair hearing in state court on his fourth amendment claim, he could not raise that claim in a federal habeas proceeding.

Nevertheless, Jordan's federal habeas petition did not address itself to the question whether the state afforded him an opportunity for full and fair litigation of his claim. Under similar circumstances, we have held that a habeas petitioner to whom Stone v. Powell is retroactively applied should be given a chance to be heard upon the legal standard announced in that case. See Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1976). When petitioner could not have known that his sole prospect of habeas relief lay in a claim that the state denied him fair opportunity to litigate his fourth amendment claim, the case should be remanded to allow the petitioner to address the requirements of Stone if there is any chance he will be able to prove that the state denied him full and fair hearing. On the other hand, where a review of the record demonstrates beyond doubt that the petitioner received a full and fair hearing in state court on his fourth amendment claim...