Mack v. Cupp
| Decision Date | 17 November 1977 |
| Docket Number | No. 76-3449,76-3449 |
| Citation | 564 F.2d 898 |
| Parties | Arthur William MACK, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John M. Biggs (argued), of Allen & Biggs, Eugene, Or., for appellant.
John W. Burgess, Asst. Atty. Gen. (argued), Salem, Or., for appellee.
Appeal from the United States District Court for the District of Oregon.
Before BARNES and ELY, Circuit Judges, and VAN PELT, * District Judge.
Mack was convicted by the Circuit Court of Lane County, Oregon, sitting without a jury, for possession of more than one ounce of marijuana. Or.Rev.Stat. § 167.207 (1975). The Oregon Court of Appeals affirmed his conviction, filing a written opinion. State v. Mack, 21 Or.App. 522, 535 P.2d 766 (1975). Mack's petition for review in the Oregon Supreme Court was denied because it was filed late. In November, 1975, Mack petitioned the District Court for a writ of habeas corpus under 28 U.S.C. § 2254 (1970). After a United States magistrate conducted an evidentiary hearing, the court denied Mack's petition upon the basis of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). This appeal followed. Concluding that the State of Oregon has extended an opportunity for the full and fair litigation of Mack's fourth amendment claims, we decline to reexamine the merits of those claims; hence, we affirm.
A search of Mack's residence on February 22, 1974, conducted pursuant to a search warrant obtained by an Oregon Deputy Sheriff, one Hackett, resulted in the seizure of a quantity of drugs and disclosed a rent receipt in Mack's name for a garage in Springfield, Oregon. Later in the same day, Jacobs, an Oregon State Police Officer, obtained a warrant authorizing a search of the garage. Jacobs' affidavit recited, in pertinent part:
During a search incident to arrest, I located, in Arthur Macks (sic ) wallet a receipt for the rent of a garage located at 4445 Franklin Blvd. the garage number being 44-B.
I proceeded to 4445 Franklin Blvd, Sprinfield (sic ), Lane County, Oregon where I located garage number 44B belonging to a Rent-A-Garage, Inc which is one of a number of aluminum appearing silver metal garages located in a row . . . .
From my position outside the garage, I observed a green plastic garbage bag inside the garage from which protruded what appeared to me to be a kilo of marihuana. I made this observation from a distance of approximately 10'.
The search of the garage resulted in the seizure of more than one ounce of marijuana. This marijuana was the only drug substance introduced into evidence during the state court trial.
In the Lane County Circuit Court, Mack's counsel filed a pretrial motion to suppress all the evidence obtained from both searches. The thrust of the motion was that: (1) Hackett's affidavit did not establish probable cause and relied upon the affiant's asserted knowledge of a prior unrelated narcotics arrest of Mack, which had resulted in court suppression of evidence seized in an illegal search; and (2) Jacobs obtained the information set forth in his affidavit from the fruit of an illegal search of Mack's residence and by "a breaking of the close" of the garage prior to seeking a warrant. In an affidavit appended to the motion, Mack's counsel averred that "it would have been necessary for Officer Allen Jacobs to break the close of the garage before being able to observe any items therein."
After hearing legal arguments, the state trial judge denied the motion to suppress finding probable cause established by both the Hackett and the Jacobs affidavits and stating, "I am not convinced, no matter where the proof burden resides, that Jacobs was trespassing upon a constitutionally protected area when he made his observation." 1 The judge did not hold an evidentiary hearing on the factual issues raised by the motions, apparently perceiving no factual conflict between Mack's motion and supporting affidavit and the affidavits of the officers. It was the court's view that Mack's counsel had not described the physical characteristics of the garage or the surrounding area so as to substantiate the claim that Jacobs must have broken into the garage in order to gain the information contained in his affidavit. In issuing its ruling, the judge applied Lane County Circuit Court Rule 7.015, which provides:
(1) All motions to suppress evidence must be accompanied by an affidavit or affidavits on behalf of the defendant setting forth all facts within his knowledge upon which he intends to rely in support of the motion. Any opposition to a motion to suppress together with any opposing affidavits upon which it is based shall be in writing and shall be served and filed not more than seven (7) days after the motion to suppress has been filed.
(3) Unless otherwise ordered or permitted by the court, motions involving issues of fact shall be initially made and opposed upon affidavits. The court shall order an evidentiary hearing if necessary to resolve any conflicts on issues of fact presented by the affidavits.
In disposing of this appeal, we are obliged to apply the standard fixed by the Supreme Court in Stone v. Powell :
(W)here 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.
428 U.S. at 482, 96 S.Ct. at 3052. Our court has previously determined that Stone applies retroactively to cases, such as this, in which federal habeas corpus relief was sought prior to the date of the Stone decision. Tisnado v. United States, 547 F.2d 452, 455 (9th Cir. 1976); Bracco v. Reed, 540 F.2d 1019, 1020 (9th Cir. 1976); accord, Dupont v. Hall, 555 F.2d 15, 17 (1st Cir. 1977); Cole v. Estelle, 548 F.2d 1164, 1164 n. 1 (5th Cir. 1977); Rigsbee v. Parkinson, 545 F.2d 56, 57 (8th Cir. 1976); Chavez v. Rodriguez, 540 F.2d 500, 502 (10th Cir. 1976).
The Supreme Court has not yet delineated the perimeters of "full and fair litigation" of a fourth amendment claim. In Stone, the Court cited as analogous authority Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), which established criteria for determining when a federal district court should hold an evidentiary hearing in a habeas corpus proceeding. 428 U.S. at 494 n. 36, 96 S.Ct. 3037. Under Townsend a state evidentiary hearing is not full and fair if:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
372 U.S. at 313, 83 S.Ct. at 757.
Several courts have explored the relationship between Townsend and Stone. In Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), the Second Circuit, applying Townsend, ruled that a prisoner had not received a full and fair opportunity to litigate his fourth amendment claim in the state court because that court failed to articulate any reasons for its constitutional decision or to develop any evidence relating to the circumstances of the prisoner's arrest.
Although we think that the Townsend test must be given great weight in defining what constitutes full and fair consideration under Stone, we do not believe that it must always be applied literally, as Mack requests, as the sole measure of fullness and fairness. Graves v. Estelle, 556 F.2d 743, 746 (5th Cir. 1977) (); O'Berry v. Wainwright, 546 F.2d 1204, 1211 (5th Cir. 1977); see United States ex rel. Petillo v. New Jersey, 562 F.2d 903 at 906-07 (3d Cir. Aug. 23, 1977). Townsend was concerned with the accuracy of the state's decision making, a consideration that is not relevant to the mandate of Stone v. Powell. Under...
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...`always be applied literally ... as the sole measure of fullness and fairness.'" Terrovona, 912 F.2d at 1178 (quoting, Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.1977)). The court found that the extent to which claims were presented and considered by the state courts was an important factor. ......
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