Mann v. Smith

• Decision Date: 19 February 1974
• Docket Number: No. 71-1932.,71-1932.
• Citation: 488 F.2d 245
• Parties: Thomas Richard MANN, Petitioner-Appellant, v. Stewart C. SMITH, Chief Probation Officer, San Bernardino County, and Lowell E. Lathrop, District Attorney, San Bernardino County, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 245 (1973)

Thomas Richard MANN, Petitioner-Appellant, v. Stewart C. SMITH, Chief Probation Officer, San Bernardino County, and Lowell E. Lathrop, District Attorney, San Bernardino County, Respondents-Appellees.

No. 71-1932.

United States Court of Appeals, Ninth Circuit.

July 9, 1973.

Rehearing Denied November 15, 1973.

Certiorari Denied February 19, 1974.

Robert F. Mann, (argued), of Gilbert, Mann & Sarno, Santa Monica, Cal., for petitioner-appellant.

Russell Iungerich, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Daniel W. McGovern, Deputy Atty. Gen., Los Angeles, Cal., Lowell E. Lathrop, Dist. Atty., San Bernardino, Cal., for respondents-appellees.

Before BARNES and WALLACE, Circuit Judges, and ENRIGHT,^* District Judge.

Certiorari Denied February 19, 1974. See 94 S.Ct. 1445.

WALLACE, Circuit Judge:

The State of California charged Mann with possessing marijuana and maintaining a place for use of narcotics (Cal.Health & Safety Code §§ 11530, 11557). He pleaded not guilty and moved to suppress the marijuana seized at his home, charging violation of his Fourth Amendment rights.

His motion was denied after an evidentiary hearing in the state trial court. Mann then sought a writ of mandate directing the trial court to suppress the challenged evidence. This was denied by the Court of Appeal and then by the Supreme Court of California. Mann v. Superior Court, 3 Cal.3d 1, 472 P.2d 468, 88 Cal.Rptr. 380 (1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971).

Mann then pleaded guilty to the possession of marijuana count. The state's motion to dismiss the remaining count was granted. One month later, Mann petitioned the United States District Court for a writ of habeas corpus. The denial of that petition is the subject of this appeal. We affirm.

Mann again claims a violation of his Fourth Amendment rights. But, having pleaded guilty, he has lost his right to raise this challenge. In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the Court stated:

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

The voluntariness and intelligent character of Mann's plea are not here questioned. No other issue remains.

The dissent suggests the rule should be different where there is a state procedure, such as in California¹ and New York,² which allows a defendant to appeal the denial of his motion to suppress even after a conviction predicated upon a plea of guilty. An analogous question was specifically left open in McMann v. Richardson, 397 U.S. 759, 770 n. 13, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Our brothers of the Second Circuit have made such an exception.³ However, their decision predated Tollett which made no mention of any exceptions.

While states may institute various internal procedural rules for testing questions on state appeal, we believe the wise course is to have a uniform rule applicable to all states when federal habeas corpus is requested. While this question was not specifically presented, Tollett states a rule which appears to cover all federal habeas corpus petitioners. We hold that, subsequent to a plea of guilty, there can be no federal collateral attack based upon an alleged violation of constitutional rights occurring prior to the guilty plea.

If, in fact, Mann did rely on the erroneous advice of his attorney and believed that he could still raise his constitutional claims subsequent to the guilty plea, he should raise that question by attacking the voluntariness and intelligent character of his plea. Tollett, supra, 411 U.S. at 267, 93 S.Ct. 1602.

Affirmed.

ENRIGHT, District Judge (dissenting):

I respectfully dissent.

The majority rely upon the following language in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L. Ed.2d 235 (1973):

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

I am unable to agree with the court's position on the problems posed and the specific issues reserved in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), one of the Brady triology.¹

In McMann, the court wrote:

A conviction after a plea of guilty normally rests on the defendant\'s own admission in open court that he committed the acts with which he is charged. Citations omitted. That admission may not be compelled, and since the plea is also a waiver of trial —and unless the applicable law otherwise provides,11 a waiver of the right to contest the admissiblity of any evidence the state might have offered against the defendant—it must be an intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S., at 748, 90 S. Ct., at 1469. . . .

397 U.S. at 766, 90 S.Ct. at 1446 (emphasis added).

The accompanying footnote reads:

11. New York law now permits a defendant to challenge the admissibility of a confession in a pre-trial hearing and to appeal from an adverse ruling on the admissibility of the confession even if the conviction is based on a plea of guilty. N.Y.Code Crim.Proc. § 813-g (Supp.1969) (effective July 16, 1965). A similar provision permits a defendant to appeal an adverse ruling on a Fourth Amendment claim after a plea of guilty. N.Y.Code Crim.Proc. § 813-c (Supp.1969) (effective April 29, 1962).

Id. n.11 (emphasis added).

The McMann court also wrote that

13. We do not here consider whether a conviction, based on a plea of guilty entered in a State permitting the defendant pleading guilty to challenge on appeal the admissibility of his confession (as in New York after July 16, 1965, see n.11, supra), would be open to attack in federal habeas corpus proceedings on the grounds that the confession was coerced. Cf. United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (C. A.2d Cir.1967).

Id. at 770, 90 S.Ct. at 1448, n.13.

In United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (2d Cir.1967), the Second Circuit held that under the criminal statutory scheme of New York, following an unsuccessful motion to suppress evidence, a defendant, by pleading guilty, does not thereby forfeit his right to apply for federal habeas corpus relief should his state appeal prove unsuccessful.²

Since the California Penal Code § 1538.5(m) (West Supp.1973)³ provides a similar statutory scheme, I would hold as had the Second Circuit that petitioner should not be deprived of federal habeas corpus relief.⁴

The California procedure encourages competent counsel to resolve all else but the legal issues specifically reserved for precisely the reasons advanced in United States ex rel. Rogers v. Warden of Attica State Prison. Its purpose is to negate the very relinquishment of which Tollett speaks. This statutory scheme does not waive the petitioner's rights, as the majority suggests Tollett mandates, but was specially enacted to preserve those rights—and preserved they were by the petitioner's adherence to the procedures outlined in § 1538.5(m). Hence, based on the Brady trilogy itself, Tollett cannot be considered persuasive authority as to the petitioner's claim. The competence of counsel discussed in Tollett is clearly not applicable here; any competent California attorney would assure his client that he had specifically reserved (as here) by his plea that which the majority now holds as a matter of law, he has forever and affirmatively waived by that very same plea. The rationale of Tollett should not, therefore, be used on a procedural basis as authority for disposing of the substantive claim herein involved.

On the merits of the petition, I would reverse the judgment of the district court and would concur in the dissenting opinion filed by Justice Peters in Mann v. Superior Court, 3 C.3d 1, 88 Cal.Rptr. 380, 472 P.2d 468 (1970). Police, while engaged in the investigation of a private party in the home of a school teacher, first, came upon the petitioner's property and surveyed the interior while standing between bushes and a window,⁵ and thereafter, entered the petitioner's premises following closely behind invited guests. (Unknown voices answered "come in," in response to a knock.) Serious issues as to probable cause and the validity of consent were raised by the petitioner. A small quantity of marijuana was found inside the residence and all persons present were arrested. Admittedly and concededly, the officers were without lawful probable cause at the time they approached the front door, and by the only prosecution testimony offered, specifically eliminated the odor of marijuana (which was detected when they entered the residence), as any factor in the probable cause for the subsequent arrests.⁶ The consent issue was crucial to the resolution of the violations alleged.

Certainly the facts of this case are subject to the interpretation that...