Morales v. Cady

• Decision Date: 26 January 1970
• Docket Number: No. 69-C-563.,69-C-563.
• Citation: 309 F. Supp. 640
• Parties: Juan G. MORALES, Petitioner, v. Elmer O. CADY, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

309 F. Supp. 640

Juan G. MORALES, Petitioner, v. Elmer O. CADY, Warden, Respondent.

No. 69-C-563.

United States District Court, E. D. Wisconsin.

January 26, 1970.

Paul C. Konnor, Milwaukee, Wis., for petitioner.

Robert W. Warren, Atty. Gen., by William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, District Judge.

Juan G. Morales, a prisoner at the Wisconsin state prison, has brought a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He alleges that evidence used against him at his trial was obtained by means of illegal search and seizure pursuant to a search warrant issued by a circuit judge; he charges that the warrant was issued without probable cause.

The petitioner pursued an appeal in the state court, and his conviction was affirmed in Morales v. State, 44 Wis.2d 96, 170 N.W.2d 684 (1969).

Under the authority of Schmear v. Gagnon, 396 F.2d 786 (7th Cir. 1968), it would appear that the petitioner is entitled to a ruling upon the merits of his application for habeas corpus on the grounds of an allegedly illegal search. At least one other court has allowed this type of petition to be heard. United States ex rel. Boyance v. Myers, 372 F.2d 111 (3rd Cir. 1967).

The right to have such issue determined on its merits is somewhat confounded by the fact that a federal prisoner does not enjoy such right. In Shorten v. Markley, 330 F.2d 102 (7th Cir. 1964), it was held that alleged errors in the admission of illegally obtained evidence are not open to attack by habeas corpus; the petitioner in that case was a federal prisoner. The seventh circuit court of appeals has frequently held that a motion by a federal prisoner under 28 U.S.C. § 2255 may not be used collaterally to attack a sentence because of the alleged illegal seizure of evidence. Sinks v. United States, 318 F.2d 436 (7th Cir. 1963); Thomas v. United States, 308 F.2d 369 (7th Cir. 1962); Pearson v. United States, 305 F.2d 34 (7th Cir. 1962).

The foregoing rulings suggest that a state prisoner is entitled to a review on the merits of a claim that illegally obtained evidence was utilized in his trial, but such a claim by a federal prisoner may not be heard on either habeas corpus or a § 2255 motion. The result is all the more burdensome because in none of the cases cited above did the court actually distinguish between state and federal prisoners.

Since a state prisoner was allowed to pursue such claim in Schmear, I believe it is the better course here to consider Mr. Morales' claim on the merits.

The petitioner alleges that the search warrant was defective because the circuit judge issued the warrant on the testimony of an informer, Alvarez, and then revoked the warrant about four hours later and issued a second warrant based upon the additional testimony of a police detective. It is argued that because the informer was a drug user, his testimony was...