Lucas v. People of State of Michigan, 19198.
Citation | 420 F.2d 259 |
Decision Date | 05 January 1970 |
Docket Number | No. 19198.,19198. |
Parties | Johnnie LUCAS and Chester Sturgis, Plaintiffs-Appellees, v. PEOPLE OF the STATE OF MICHIGAN, Respondents-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
Stewart H. Freeman, Lansing, Mich., for appellants; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Wood, Asst. Atty. Gen., Lansing, Mich., on brief.
Samuel J. Posner, Detroit, Mich., for appellees.
Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.
This is a habeas corpus case presenting the primary issue of whether there is a conflict between the Fourth Amendment to the Constitution of the United States, as construed in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the last sentence of Article 1, § 11 of the Michigan Constitution of 1963, which is as follows:
The State of Michigan appeals from an order of the District Court granting a writ of habeas corpus.
The Recorder's Court of the City of Detroit found appellees guilty of carrying a pistol in a motor vehicle without a license and on November 1, 1967, sentenced them to state prison for a term of from two to five years. A claim of appeal was filed with the Michigan Court of Appeals, but no further action has been taken to perfect the appeal. The Recorder's Court, sitting without a jury, found that the search and seizure of certain weapons in the automobile in which appellees were traveling was unreasonable and unlawful, but over the objection of appellees admitted the weapons in evidence by authority of the above quoted provision of the Michigan constitution.
A motion to suppress the evidence was denied by the Recorder's Court. In admitting the weapons into evidence, the Court said:
A petition for writ of habeas corpus was filed with the United States District Court on June 25, 1968. In their petition appellees urged that the trial court improperly admitted evidence which had been discovered through an illegal search and seizure. The State moved to dismiss the petition on the ground that appellees had failed to exhaust their State court remedies. The District Court found that appellees had no effective remedy available in the State courts and denied the motion to dismiss. After an evidentiary hearing, District Judge Damon J. Keith found that the search was unreasonable and concluded that evidence discovered thereby was not admissible. Appellees were ordered released from custody unless a new trial is granted within 30 days. The State Attorney General filed a timely notice of appeal on behalf of the State.
We affirm.
The issues raised by this appeal are:
(1) Whether appellees have exhausted their State court remedies, or, if not, are they excused from doing so; and (2) whether Article 1, § 11 of the 1963 Michigan Constitution (Article 2, § 10 of the 1908 Constitution) is in conflict with the Fourth Amendment as interpreted by Mapp v. Ohio.
It is axiomatic that a petition for writ of habeas corpus by a person in State custody will not be granted unless State court remedies have been exhausted. 28 U.S.C. § 2254(b), (c).1 The mere anticipation of an adverse decision will not excuse a failure to exhaust, nor will the lack of probability of success. See Boyd v. State of Oklahoma, 375 F.2d 481 (10th Cir.); Oliver v. State of California, 364 F.2d 311 (9th Cir.); United States ex rel. Touhy v. Ragen, 224 F.2d 611 (7th Cir.).
However, the exhaustion requirement is not absolute. See Coleman v. Maxwell, 351 F.2d 285 (6th Cir.); Saulsbury v. Green, 347 F.2d 828 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 173, 15 L.Ed.2d 122. Where there are circumstances rendering the State corrective process ineffective to protect a prisoner's rights, habeas corpus relief may be granted without requiring a futile exhaustion of remedies. Duke v. Wingo, 386 F.2d 304 (6th Cir.). Such circumstances were found to exist where the state court had ruled contrary to the petitioner's contentions, when there was no indication that the court was prepared to depart from its former course of decisions. Coleman v. Maxwell, supra, Rowe v. Peyton, 383 F.2d 709, 711 (, )aff'd, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 420; Evans v. Cunningham, 335 F.2d 491 (4th Cir.). This court held in Coley v. Alvis, 381 F.2d 870 (6th Cir.), that where the State's highest court has construed its statute governing post-conviction relief so as to deny a prisoner an opportunity to raise constitutional issues, he may petition for habeas corpus without exhaustion of state remedies. There we said:
381 F.2d at 872-73.
In the case at bar the procedure itself has not been restricted, i. e. the channels for relief in the State courts of Michigan are open. We are convinced, however, that the portal to constitutional adjudication and protection in the State courts is closed securely.
In a recent decision of the United States District Court for the Eastern District of Michigan, Caver v. Kropp, Warden, 306 F.Supp. 1329 (Decided November 10, 1969), District Judge Theodore Levin granted a writ of habeas corpus under facts somewhat similar to those involved on the present appeal. Judge Levin summarized the holdings of the Supreme Court of Michigan and the Michigan Court of Appeals in this area as follows:
See also concurring opinion of Levin, J., in People v. Barker, 18 Mich.App. 544, 549, 171 N.W.2d 574; and Winkle v. Kropp, 279 F.Supp. 532, 539, reversed on other grounds, 403 F.2d 661 (6th Cir.), cert. denied, 394 U.S. 1003, 89 S.Ct. 1600, 22 L.Ed.2d 781, rehearing denied 395 U.S. 941, 89 S.Ct. 2002, 23 L.Ed.2d 459.
In People v. Blessing, 378 Mich. 51, 142 N.W.2d 709, cert. denied, 387 U.S. 914, 87 S.Ct. 1692, 18 L.Ed.2d 637, one of the points argued, stated in the opinion of Mr. Justice Kelly, was:
"* * * that article 1, section 11, of the 1963 Michigan Constitution (article 2, § 10, 1908 Constitution), violated the Fourteenth Amendment to the United States Constitution as interpreted by the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, 84 A.L.R.2d 933." 378 Mich. at 56, 142 N.W.2d at 710.
The dissenting opinion of Mr. Justice Souris pointed out that under Mapp v. Ohio, supra, the State courts must exclude from evidence items seized in violation of the Fourth Amendment prohibition. After quoting the Supremacy Clause, the dissenting opinion proceeded with this comment:
378 Mich. at 76, 142 N.W.2d at 718.
In People v. Goliday, 18 Mich.App. 336, 171 N.W.2d 25, the Michigan Court of Appeals said:
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