Morrison v. Kimmelman

• Decision Date: 18 January 1985
• Docket Number: No. 84-5138,84-5138
• Citation: 752 F.2d 918
• Parties: Neil MORRISON, Appellee, v. Irwin I. KIMMELMAN, Attorney General of New Jersey and John J. Rafferty, Superintendent, Rahway State Prison, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 918

752 F.2d 918

Neil MORRISON, Appellee, v. Irwin I. KIMMELMAN, Attorney General of New Jersey and John J. Rafferty, Superintendent, Rahway State Prison Appellants.

No. 84-5138.

United States Court of Appeals Third Circuit.

Argued Oct. 30, 1984.

Decided Jan. 18, 1985.

Irwin I. Kimmelman, Atty. Gen. of New Jersey, Arlene R. Weiss (Argued), Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellants.

William E. Staehle (Argued), Bozonelis, Staehle & Woodward, Chatham, N.J., for appellee.

Before GARTH and SLOVITER, Circuit Judges and LORD, District Judge. ^*

OPINION OF THE COURT

JOSEPH S. LORD, III, District Judge, sitting by designation.

I. Introduction

This appeal from an order of the district court granting petitioner's habeas corpus petition presents three issues. First, does the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), barring collateral review of a Fourth Amendment claim preclude our consideration of petitioner's Sixth Amendment claim that he was denied effective assistance of counsel? Second, if we may review petitioner's claim, did his "counsel's representation fall below an objective standard of reasonableness", Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)? Third, if so, did the ineffectiveness prejudice defendant under the standard set forth in Strickland v. Washington, supra, 104 S.Ct. at 2068?

II. Facts

In March, 1979, petitioner was convicted in a bench trial in a New Jersey state court of carnal abuse, forcible rape, impairing the morals of a child, and private lewdness in connection with his alleged rape of his fifteen year old employe. During the course of petitioner's trial, the state offered into evidence a sheet which Detective Delores Most testified she had seized from petitioner's bed shortly after the rape allegedly occurred in petitioner's apartment. The search and seizure were non-consensual and warrantless. Police lab technicians later testified that stains on the bed sheet were positive for sperm from a man with petitioner's blood type and that hairs recovered from the sheet were similar to the head hair of both the petitioner and the victim.

Because defense counsel failed to conduct any discovery, he was unaware that the state was in possession of the sheet. He therefore failed to make a timely motion to suppress the evidence before the trial, as required by New Jersey Court Rule 3:5-7(a). When defense counsel moved to suppress during Detective Most's testimony, the trial judge stated that under the state court rules he could no longer entertain the motion. The trial judge also noted that there would have been "a very valid basis for suppression" if the motion had been made in a timely manner. In addition, he reprimanded defense counsel for failing to conduct discovery which would have alerted him to the fact that the state was in possession of petitioner's sheet.

Following his conviction, petitioner unsuccessfully exhausted state remedies. See Morrison v. Kimmelman, 579 F.Supp. 796, 800 (D.N.J.1984). This petition for habeas corpus followed. The district judge properly determined that he was precluded from reviewing petitioner's Fourth Amendment claim under the doctrine of Stone v. Powell, supra. Morrison v. Kimmelman, supra, at 802. However, the district court did consider petitioner's Sixth Amendment claim and found that "based on the unmitigated negligence of petitioner's trial counsel in failing to conduct any discovery, combined with the likelihood of success of a suppression motion had it been timely made," petitioner was deprived of effective assistance of counsel. Id. at 802-03. The court also determined that this deprivation constituted error that was not harmless beyond a reasonable doubt. Id. at 804. The district court ordered that the writ would issue unless the state retried Morrison within 90 (ninety) days. This order, however, was stayed by the district court pending determination of this appeal.

III. Discussion

A.

The district judge was undoubtedly correct in deciding that Stone v. Powell precludes federal court review of petitioner's Fourth Amendment exclusionary claim. That case held that "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." 428 U.S. at 494, 96 S.Ct. at 3052. Petitioner in this case does not argue that New Jersey denied him a full and fair opportunity to litigate his claim. Rather, he argues that his counsel's ineffectiveness prevented him from taking advantage of the opportunity provided under New Jersey's court rules. Since the state did provide an opportunity for full litigation of the Fourth Amendment claim, under Stone the district court and this court are now precluded from reviewing the legality of the search under the Fourth Amendment. We must decide here whether that bar also extends to petitioner's Sixth Amendment claim because our consideration of it must touch on the merits of petitioner's Fourth Amendment claim.

Other courts have wrestled with this troublesome issue. In LiPuma v. Commissioner, 560 F.2d 84 (2d Cir.1977), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1978), the Second Circuit held that counsel's failure to file a suppression motion before trial did not constitute ineffective assistance of counsel. Id. at 93. In dictum the court stated: "The fact that petitioner's claim is ostensibly grounded on the Sixth, rather than the Fourth, Amendment does not negate Stone's applicability, because at the heart of the case lies an alleged Fourth Amendment violation." Id. at 93 n. 6. The Fourth Circuit reached the opposite conclusion in Sallie v. State of North Carolina, 587 F.2d 636 (4th Cir.1978), cert. denied, 441 U.S. 911, 99 S.Ct. 2009, 60 L.Ed.2d 383 (1979), in which it ruled "... we do not read [Stone ] to say that issuance of a writ of habeas corpus on sixth amendment grounds is barred if a defense attorney fails to object to the admission of evidence obtained in clear violation of the fourth amendment." Id. at 640.

The court in Toliver v. Wyrick, 469 F.Supp. 583 (W.D.Mo.1979) stated that if it had been called upon to decide whether to extend Stone to a Sixth Amendment violation, it would have refused to do so. Id. at 604 n. 32. The court determined that Stone did not apply to a violation of the Miranda rules. Id. at 604. And in Moran v. Morris, 478 F.Supp. 145 (C.D.Ca.1979), vacated on other grounds, 665 F.2d 900 (9th Cir.1981), the court was careful to differentiate between the rationale for granting relief under the exclusionary rule for a Fourth Amendment claim and the purpose of granting relief for a Sixth Amendment violation when counsel failed to raise a Fourth Amendment claim. The court concluded that Stone should not be extended to include Sixth Amendment claims. Id. at 151-52.

We are persuaded that absent a clear mandate from the Supreme Court, Stone v. Powell should not be extended to bar consideration of Sixth Amendment issues based on counsel's alleged failure to advance Fourth Amendment claims. We rely on the language of Stone itself and on our analysis of the differences between Fourth and Sixth Amendment claims.

In the majority opinion in Stone, Justice Powell painstakingly examined the history and purpose of the exclusionary rule. He noted, for example, that "although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice." Id. 428 U.S. at 491, 96 S.Ct. at 3051. He then explained that the Court's decision in Stone springs from the pragmatic conclusion that on federal habeas corpus review, "the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force." Id. at 494-95, 96 S.Ct. at 3052-53. Most significantly for our purposes here, in response to the dissent's alarmed characterization of the decision as the prelude to a "drastic withdrawal of federal habeas jurisdiction," id. at 517, 96 S.Ct. at 3063. Justice Powell emphasized the limited nature of the decision:

Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right .... In sum, we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. Our decision does not mean that the federal court lacks jurisdiction over such a claim, but only that the application of the rule is limited to cases in which there has been both such a showing and a Fourth Amendment violation.

Id. at 494 n. 37, 96 S.Ct. at 3052-53 n. 37. Certainly, this language cannot be read as a license to expand freely the decision of the Court to include other types of constitutional claims.

The Sixth Amendment, which appellants would have us include under the bar of Stone, implicates an entirely different set of concerns than does the exclusionary rule. As Justice Powell notes, the exclusionary rule, although it arises out of a constitutional right, is merely a judicially created doctrine. The Sixth Amendment, however, is an essential component of our constitutional system. The exclusionary rule was created to deter police officers from engaging in illegal searches and seizures. Its application frequently affected the...