Kimmelman v. Morrison

Decision Date26 June 1986
Docket NumberNo. 84-1661,84-1661
PartiesIrwin I. KIMMELMAN, Attorney General of New Jersey, et al., Petitioners v. Neil MORRISON
CourtU.S. Supreme Court

At respondent's bench trial in a New Jersey court resulting in his conviction of rape, a police officer testified that a few hours after the rape she accompanied the victim to respondent's apartment where the rape had occurred; that he was not there but another tenant let them into respondent's apartment; and that the officer seized a sheet from respondent's bed. At such point in the testimony, respondent's counsel sought to suppress introduction of the sheet and any testimony about it on the ground that the officer had seized it without a search warrant in violation of the Fourth Amendment, but the judge ruled that counsel's suppression motion was late under the applicable New Jersey Court Rule. The judge rejected counsel's attempt to justify his omission on the grounds that he had not heard of the seizure until the day before, when the trial began; that it was the State's obligation to inform him of its case, even though he made no pretrial request for discovery, which would have revealed the search and seizure; and that he had not expected to go to trial because he had been told that the victim did not wish to proceed. Respondent retained new counsel after the trial and, on appeal, alleged ineffective assistance of counsel at the trial and error in the trial court's refusal to entertain the suppression motion during the trial. The appellate court rejected the claims and affirmed respondent's conviction. Thereafter respondent unsuccessfully sought postconviction relief from the trial judge on the same grounds. He then obtained habeas corpus relief in Federal District Court, which held, inter alia, that he had established his ineffective-assistance claim. The Court of Appeals concluded that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)—which held that federal courts should withhold habeas review where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim—should not be extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. Reviewing the District Court's determination of ineffective assistance under the test established by the intervening decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)—which held that, to establish ineffective assistance, the defendant must prove both incompetence of counsel and prejudice—the Court of Appeals determined that respondent's trial counsel had been "grossly ineffective," but vacated and remanded for the District Court to consider whether, under the standards set forth in Strickland, respondent had been prejudiced by his attorney's incompetence.


1. The restriction on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, supra, does not extend to Sixth Amendment ineffective-assistance-of-counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue. Federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error. Pp. 373-383.

(a) Respondent's Sixth Amendment claim is not in fact a Fourth Amendment claim directly controlled by Stone, as petitioners assert. The two claims are distinct, both in nature and in the requisite elements of proof. Pp. 374-375.

(b) Nor are the rationale and purposes of Stone fully applicable to a Sixth Amendment claim that is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently. Stone held that the remedy for Fourth Amendment violations provided by the exclusionary rule is not a personal constitutional right, but instead is predominately a judicially created structural remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect; the rule has minimal utility in the context of federal collateral proceedings. Here, respondent sought direct federal habeas protection of his fundamental personal right to effective assistance of counsel, and collateral review is frequently the only means through which an accused can effectuate that right. Moreover, there is no merit to the contention that a defendant should not be allowed to vindicate through federal habeas review his right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence that is often the most probative information bearing on the defendant's guilt or innocence. The right to counsel is not conditioned upon actual innocence. Pp. 375-380.

(c) Petitioners' prediction that every Fourth Amendment claim that fails in state court will be fully litigated in federal habeas proceedings in Sixth Amendment guise, and that, as a result, many state-court judgments will be disturbed, is incorrect because it ignores the rigorous standard which Strickland v. Washington, supra, erects for ineffective-assistance claims. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompe- tence of their attorneys are entitled to the writ and to retrial without the challenged evidence. Pp. 380-382.

2. Respondent satisfied the incompetence prong of the test for ineffective assistance of counsel set forth in Strickland, and the Court of Appeals did not err in remanding the case to the District Court for a determination of prejudice under Strickland's standard. Pp. 383-391.

(a) While the failure to file a suppression motion does not constitute per se ineffective assistance of counsel, the record clearly reveals that respondent's attorney failed to file a timely suppression motion, not due to trial strategy considerations, but because he was unaware of the search, and of the State's intention to introduce the bedsheet into evidence, due to his failure to conduct any pretrial discovery. Such failure here was not, as required under Strickland, reasonable and in accord with prevailing professional norms. Pp. 383-387.

(b) With respect to the prejudice prong of the Strickland test, there is no merit to petitioners' contention that a statement made by the trial judge at a post-trial hearing on respondent's motion for bail pending appeal constituted a finding that even if the bedsheet had been excluded, he would have found respondent guilty, and that such finding was a subsidiary finding of historical fact that respondent was not prejudiced by his attorney's incompetence, entitled under 28 U.S.C. § 2254(d) to a presumption of correctness in federal habeas proceedings. The record here is not sufficiently complete to enable this Court to apply Strickland's prejudice prong directly to the facts of the case, and the remand to the District Court for redetermination of prejudice was proper. Pp. 387-391.

752 F.2d 918 (CA 3 1985), affirmed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 391.

Allan J. Nodes, Trenton, N.J., for the petitioners.

William E. Staehle, Chatham, N.J., for respondent.

Justice BRENNAN delivered the opinion of the Court.

The question we address in this case is whether the restrictions on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), should be extended to Sixth Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.


Respondent, Neil Morrison, was convicted by the State of New Jersey of raping a 15-year-old girl. The case presented by the State at respondent's bench trial consisted of scientific evidence and of the testimony of the victim, her mother, and the police officers who handled the victim's complaint.

The victim testified that Morrison, who was her employer, had taken her to his apartment, where he forced her onto his bed and raped her. Upon returning home, the girl related the incident to her mother, who, after first summoning Morrison and asking for his account of events, phoned the police. The police came to the victim's home and transported her to the hospital, where she was examined and tested for indicia of a sexual assault.

The State also called as a witness Detective Dolores Most, one of the officers who investigated the rape complaint. Most testified that she accompanied the victim to Morrison's apartment building a few hours after the rape. Morrison was not at home, but another tenant in the building let them into respondent's one-room apartment. While there, Most stated, she seized a sheet from respondent's bed.

At this point in the testimony respondent's counsel objected to the introduction of the sheet and to any testimony concerning it on the ground that Most had seized it without a search warrant. New Jersey Court Rules, however, require that suppression motions be made within 30 days of indictment unless the time is enlarged by the trial court for good cause. N.J.Ct.Rule 3:5-7. Because the 30-day deadline had long since expired, the trial judge ruled that counsel's motion was late. Defense counsel explained to the court that he had not heard of the seizure until the day before, when trial began, and that his client could not have known of it because the police...

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