Peters v. Rutledge

• Decision Date: 06 June 1968
• Docket Number: No. 25075.,25075.
• Citation: 397 F.2d 731
• Parties: Dean Rene PETERS, Appellant, v. Jack T. RUTLEDGE, Sheriff and Jailer of Muscogee County, Georgia, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

397 F.2d 731 (1968)

Dean Rene PETERS, Appellant, v. Jack T. RUTLEDGE, Sheriff and Jailer of Muscogee County, Georgia, Appellee.

No. 25075.

United States Court of Appeals Fifth Circuit.

June 6, 1968.

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Archie L. Haden, Jr., Columbus, Ga., Kirk McAlpin, Jack H. Watson, Jr., Atlanta, Ga., for appellant.

Frank K. Martin, Asst. Sol. Gen., Columbus, Ga., Mathew Robins, Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellant Peters seeks review of an order denying without an evidentiary hearing his petition for habeas corpus. Appellant raises a massive assault on his state conviction for burglary, asserting (1) use of illegally seized evidence against him at his trial, (2) systematic exclusion of Negroes from the grand and traverse (petit) juries by which he was indicted and convicted, (3) exclusion of all non-property owners from the grand and traverse juries, (4) unconstitutional restriction in cross-examination of a witness for the prosecution, and finally, (5) unconstitutional denial of his right to appeal because, through no fault of his own, his motion for rehearing in the Georgia Court of Appeals was not timely filed. Reaching the merits on only one of Appellant's claims — that he was subjected to an illegal arrest and that illegally seized evidence was introduced at trial against him — we affirm the decision of the District Court. Because of Appellant's failure to exhaust his available state remedies¹ on his other claims, they are denied without prejudice to Appellant to apply for habeas corpus relief in the Georgia State Courts.

Since the facts surrounding Appellant's arrest and the accompanying search of his person which produced a roll of paper currency that was introduced against him at trial have been fully developed at Appellant's trial and adequately but unsuccessfully presented to the Georgia Courts, we proceed to the determination of whether any constitutional infirmity exists in the introduction of that evidence.²

On March 6, 1966, H. Rothschild, Inc., in Columbus, Georgia was burglarized and its safe broken into. During the course of their investigation into this burglary, police officers received information from a reliable informer with whom they had dealt before that Appellant had a large roll of money on him and that the money came from the Rothschild's safe. On the basis of this information the officers tried to procure an arrest warrant for Peters, but they were unable to get in touch with a Magistrate. The evidence shows that the officers used all reasonable efforts to secure a warrant but were simply unable to do so. A later call by the informer revealed that Appellant was sitting in a local bar but was about to leave town, and could be easily identified by a scratch on his forehead, an injury suffered while opening the Rothschild safe. As that particular bar was only two blocks from the Georgia-Alabama state line, the officers immediately rushed to the location. Upon entering the bar the officers saw Appellant. The information supplied by the informer was further corroborated by Appellant's appearance, which indeed revealed a scratched forehead. The police arrested Appellant and the search incident to that arrest disclosed a large roll of bills later identified as being from the burglarized safe.³ This telling evidence was introduced against Appellant at his trial in the state court.

Appellant's contentions regarding the legality of the introduction of the evidence basically miss the point. A habeas corpus proceeding in the federal court is not the equivalent of an appeal. Our concern in the habeas cases is not to determine whether the arrest and subsequent search were illegal under Georgia law, that is, whether a trial error or mistake was made, but whether the arrest and search and seizure comport with federal constitutional standards under the Fourth and Fourteenth Amendments.⁴ The two are quite different.⁵ As to the state law error the Georgia Courts have determined that Appellant's arrest was legal under Georgia law, see Peters v. State, 1967, 115 Ga.App. 743, 156 S.E.2d 195. Nevertheless, for the more restrictive federal assessment "we are warranted in examining that arrest to determine whether, notwithstanding the legality under state law, * * * the search may offend federal constitutional standards of reasonableness." Ker v. State of California, supra, 374 U.S. at 38, 83 S.Ct. at 1632, 10 L.Ed.2d at 741; Amador-Gonzalez v. United States, 5 Cir., 1968, 391 F.2d 308. Assaying it under federal standards we find that Appellant's arrest was reasonable and the evidence seized thereby was properly admitted into evidence against him.

The fact situation here is remarkably similar to that of McCray v. State of Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, a case cited to us on this point by neither party. In that case an informer with whom the police had worked for many years informed them that McCray was possessing narcotics. The officers proceeded with the informer to the spot where they thought McCray could be found. Upon arriving at that location, the officers saw McCray duck between two buildings as soon as he saw the police car. The officers arrested McCray for possession of narcotics and the search incident to the arrest revealed drugs which were introduced against him at trial. The Supreme Court held that on these facts there was probable cause to sustain the reasonableness of the arrest and the subsequent search. The Court found that the background information furnished by the informer as to why he thought McCray was possessing narcotics and the reliability of the informer as testified to by the police, along with the officers' personal observations of McCray, were a sufficient basis for a reasonable man to conclude that McCray had committed or was committing an offense. See also Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327; Cf. Juarez-Flores v. United States, 5 Cir., 1968, 394 F.2d 161.

The circumstances in the present case were also sufficient to sustain the conclusion that a reasonable man would believe that appellant had committed an offense. The information given by the informer, although probably enough in itself, was further corroborated when the officers saw the injury on Appellant's face. There was probable cause here.⁶

Another argument made by Appellant, which would need no further discussion if it were not for the vigor with which it is pressed, is that the delay in taking Appellant before a Magistrate rendered the arrest void ab initio and thus illegal. Although this contention was decided adversely to Appellant by the Georgia Court of Appeals, see Peters v. State, supra, we pause only to point out that since the delay did not under state law render the arrest void, no federal rights were violated. As we said in Edwards v. Holman, 5 Cir., 1965, 342 F.2d 679, 683, cert. denied, 1966, 384 U.S. 1017, 86 S.Ct. 1934, 16 L.Ed.2d 1039, "the federal rule requiring an arrested person to be taken without unnecessary delay before a committing magistrate has no application to one arrested on a state charge and in the custody of state officers."⁷

None of the other contentions raised need be considered on the merits even though it is certain that as to some, if not all, an evidentiary hearing will be required, for Appellant has never presented them to the Georgia Courts either on direct appeal or by habeas corpus. This raises the question: What should be done? Remand it for an evidentiary hearing by the Federal Court, since such a hearing will obviously be required somewhere? Or, by affirming without prejudice, in effect remand the matter for initial state court action?

The answer now, as in the past year,⁸ is twofold. First, in the interest of comity we require that constitutional challenges to state convictions should first be presented to the state courts. Second, even though the issue has been presented to the state courts so that it is technically ripe for Federal habeas, if an evidentiary hearing is required then that hearing should be had ordinarily in those state courts where a fully effective, practicable procedure is available under state law. This is especially true in a state such as Georgia which has recently enacted its far-reaching post-conviction Habeas Corpus Act of 1967, Act No. 562 (S.B. 171), Ga.Laws, pp. 835-839, 1967 Sess., approved April 18, 1967.⁹

Except that it commits the power to the court having territorial jurisdiction over the place of confinement rather than vesting it in the original sentencing court this new act is remarkably like 28 U.S.C.A. § 2255.¹⁰ By its plain terms it assures a hearing unencumbered by the strict conditions arising from some of the Georgia cases. It is an effective remedy for securing state court review of federal challenges to state convictions. More than that it is a legislative recognition by Georgia of its responsibilities under the Supremacy Clause to vindicate federally-guaranteed, federally-protected rights in the administration of justice.¹¹

This places responsibility where it squarely belongs and where Georgia wants it. And in Milton v. Wainwright, 5 Cir., 1968, 396 F.2d 214, and others¹² we have made it clear that we ought to effectuate the policies underlying such statutes by making immediate use of them even in older cases now requiring an evidentiary hearing, not postponing application of the new procedure to cases arising in the state court after enactment of the post-conviction remedy. We there had this to say: "We are now committed to the fullest exploration of the many new and urgently needed state post-conviction remedies. In the long run, time is saved and constitutional rights are better vindicated by assuring that state mechanisms to ascertain and find facts are fully used. We reject again, as we have so many times recently...