Lee v. Winston, Civ. A. No. 82-0672-R.

• Decision Date: 12 November 1982
• Docket Number: Civ. A. No. 82-0672-R.
• Citation: 551 F. Supp. 247
• Parties: Rudolph LEE, Jr., Petitioner, v. Andrew J. WINSTON, et al., Respondents.
• Court: U.S. District Court — Eastern District of Virginia

551 F. Supp. 247

Rudolph LEE, Jr., Petitioner, v. Andrew J. WINSTON, et al., Respondents.

Civ. A. No. 82-0672-R.

United States District Court, E.D. Virginia, Richmond Division.

October 15, 1982.

Supplemental Opinion November 12, 1982.

Donald R. Curry, Stacy F. Garrett, III, Richmond, Va., for respondents.

Joseph R. Winston, John W. Moore, III, Richmond, Va., for petitioner.

MEMORANDUM

MERHIGE, District Judge.

This matter came on for hearing on the instant Petition for Writ of Habeas Corpus and petitioner's application for a temporary restraining order, preliminary injunction, and permanent injunction on October 14, 1982. For the reasons set forth below, the application will be denied and the petition dismissed. This Memorandum embodies the Court's findings of fact and conclusions of law.

Since petitioner is in custody in Richmond City Jail pending trial, the Court does not have jurisdiction pursuant to 28 U.S.C. § 2254, as petitioner asserts; that section provides jurisdiction only if the petitioner is in custody pursuant to a judgment of a state court. However, because the petitioner contends that he is in custody in violation of the Constitution, the Court does have jurisdiction over this claim pursuant to 28 U.S.C. § 2241(c)(3). The Court has jurisdiction over petitioner's claim under 42 U.S.C. § 1983 pursuant to 28 U.S.C. § 1343(3).

I. Factual Background

The facts as they appear from petitioner's pleadings and the transcript of the proceedings¹ in the Virginia trial court may be briefly summarized as follows:

Petitioner has been charged with malicious wounding, attempted robbery, and use of a firearm in the alleged commission of these two felonies.² On July 21, 1982, the Commonwealth's Attorney for the City of Richmond filed a Motion to Compel Evidence, seeking to recover a bullet lodged in petitioner's left chest. The Circuit Court conducted an evidentiary hearing on the motion beginning on July 22, 1982 and continuing on August 2, 11, and 25, 1982. At the conclusion of such hearing, the court entered its findings from the bench, concluding essentially that petitioner had been given a full opportunity to present his claim, the Commonwealth had demonstrated need for the bullet as evidence and could not obtain the same evidence from another source, and removal of the bullet would involve only a minor surgical procedure with virtually no threat of permanent injury to petitioner. (Tr. 109-111). Accordingly, the Circuit Court granted the Commonwealth's Motion to Compel Evidence, but stayed enforcement of the order to allow petitioner to undertake appropriate appellate review of the matter. Subsequently, on October 13, 1982, the Supreme Court of Virginia denied petitioner's Petition for Writ of Habeas Corpus and/or Writ of Prohibition. Thereafter, petitioner brought the instant Petition for Writ of Habeas Corpus.

II. Issues Presented

Petitioner asserts that the Circuit Court's order sustaining the Motion to Compel Evidence deprives him of rights, privileges, and immunities secured by the fourth and 14th amendments to the U.S. Constitution. For his habeas corpus claim, petitioner alleges that the order will require additional custody in that he will have to be in custody and restrained by the respondent Sheriff or his agents for the bullet to be surgically removed in a hospital. For his § 1983 claim, petitioner alleges that the conduct complained of was and will be engaged in under color of state law.

As noted supra, the Court held a hearing on October 14, 1982 after notice to respondents. Respondents were present and took part in the hearing; the Court accepted into evidence the transcript and other documentary evidence of the proceedings in the Circuit Court and the Virginia Supreme Court. Accordingly, the petitioner need not satisfy the conditions of Rule 65(b), Fed.R. Civ.P. for an ex parte application for a temporary restraining order, see Baines v. City of Danville, 337 F.2d 579 (4th Cir.1964), affirmed on rehearing 357 F.2d 756 (4th Cir.) aff'd mem., 384 U.S. 890, 86 S.Ct. 1915, 16 L.Ed.2d 996 (1966) (per curiam). When such a hearing is conducted, the procedure for considering an application for a temporary restraining order is essentially the same as that on an application for a preliminary injunction, and the distinction between the two forms disappears. See Dilworth v. Riner, 343 F.2d 226 (5th Cir.1965); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2951, at 449-500 & nn. 81-83 (1973). Were the Court to grant a preliminary injunction to petitioner, respondents might well be deprived of due process, given the brief notice they received. See Bailey v. Transportation-Communication Employees Union, 45 F.R.D. 444 (N.D. Miss.1968). However, even applying the less stringent standard for a preliminary injunction, the Court concludes that petitioner is not entitled to the relief sought.

The standard for a preliminary injunction in the Fourth Circuit is the balance-of-hardship test, whereby the district court's decision must be

based upon a flexible interplay of the four factors to be considered: (1) the likelihood of irreparable harm to the plaintiff without the temporary injunction; (2) the likelihood of harm to the defendant with the injunction; (3) plaintiff's likelihood of success on the merits; and (4) the public interest.

Telvest, Inc. v. Bradshaw, 618 F.2d 1029, 1032 (4th Cir.1980); see Maryland Undercoating Co. v. Payne, 603 F.2d 477 (4th Cir.1979); Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977).

"A future injury of uncertain date and incalculable magnitude is irreparable harm." Phillips v. Crown Central Petroleum Corp., 602 F.2d 616, 630 (4th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1021, 62 L.Ed.2d 756 (1980). In the instant case, petitioner faces a future injury of relatively certain date. The magnitude of the physical injury is also fairly certain — it is expected to be slight — as the Court's discussion infra reveals. The magnitude of the injury to petitioner's dignity from the proposed intrusion into his privacy is not, however, so certain. In sum, the Court concludes that petitioner faces a nominal risk of irreparable physical harm, see infra, and a not insubstantial risk of irreparable harm to his dignity.

The anticipated harm to the respondents is that they will be deprived of potential evidence at the time of trial on petitioner's criminal charges. The likelihood of such harm is conditioned on several factors now uncertain to varying degrees: whether the object in petitioner's shoulder is a bullet; if so, whether the bullet will be identifiable when removed; if so, whether the evidence will be useful at trial. It is also uncertain whether the delay occasioned by an injunction would cause an otherwise identifiable bullet to deteriorate to the point of being unidentifiable due to the corrosive effect of body fluids. (Tr. 52-57). In sum, the Court finds the likelihood of harm to the respondents resulting from an injunction to be uncertain, but not negligible.

The Court will reserve discussion of petitioner's likelihood of success on the merits and consider the element of the public interest. At the risk of stating the axiomatic, the public interest is that justice be done — particularly in petitioner's criminal trial. Recovering and identifying the bullet could serve to exonerate the petitioner. If the bullet amounts to useful evidence for either side, it serves the public interest in justice, since the finder of fact presumably can better reach a just result if given more useful information. On the other hand, nearly 200 years of American jurisprudence under the Bill of Rights support the principle that protecting the rights guaranteed therein amounts to justice. In sum, the Court cannot conclude that the public interest in justice would be better served by either the granting or the denial of the injunction.

Similarly, consideration of the likelihood of irreparable harm to the petitioner without the injunction and the likelihood of harm to the respondents with the injunction does not yield a clear indication of the balance of the hardships. Accordingly, the "flexible interplay" of the factors depends heavily on plaintiff's likelihood of success on the merits.

III. Stone v. Powell

Before reaching the merits of petitioner's claim that the proposed surgery will violate his fourth amendment rights, the Court must address respondents' contention that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes the Court from reaching the merits. That case, of course, limits the substantive scope of federal habeas corpus review, holding that when a state prisoner asserts that the state trial court failed to exclude evidence that the prisoner alleges came from an unconstitutional search or seizure, the federal court is only to inquire into whether the state had provided the prisoner an opportunity for a full and fair litigation of his or her claim. Id. at 481-82, 96 S.Ct. at 3046.

Both the holding and the rationale of Stone v. Powell are very closely tied to the practice and principles surrounding the exclusionary rule. On both occasions when the Court explicitly framed the question presented, it did so in terms of the introduction or exclusion of allegedly tainted evidence at trial. See id. at 469, 489, 96 S.Ct. at 3040, 3050. The holding was expressed in the same terms. See id. at 481, 96 S.Ct. at 3046 ("We conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule ..."); id. at 481-82, 494-95, 96 S.Ct. at 3046, 3052.

In Part III of the opinion, id. at 482-89, 96 S.Ct. at 3046-50, the Court traced the history and rationale of the exclusionary rule. "The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights." Id. at 486, 96 S.Ct. at 3048. The Court concluded that this purpose would not be...