Piazzola v. Watkins
Citation | 442 F.2d 284 |
Decision Date | 27 April 1971 |
Docket Number | No. 30332.,30332. |
Parties | Frank PIAZZOLA and Terrance Marinshaw, Petitioners-Appellees, v. John WATKINS, Warden, Draper Correctional Institute, and Glen Thompson, Warden, Medical and Diagnostic Center, Mt. Meigs, Alabama, Respondents-Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
MacDonald Gallion, Atty. Gen., Richard F. Calhoun, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellants.
Morris S. Dees, Jr., Joseph J. Levin, Jr., Levin & Dees, Montgomery, Ala., for petitioners-appellees.
Before RIVES, THORNBERRY and CLARK, Circuit Judges.
The district court granted habeas corpus to two Alabama prisoners and ordered their release. Piazzola and Marinshaw v. Watkins, M.D.Ala.1970, 316 F. Supp. 624. The appellants advance two contentions for reversal: (1) that the appellees have not exhausted the remedies available in the courts of the State as required by 28 U.S.C. § 2254; and (2) that the search and seizure which the district court found to be violative of appellees' Fourth Amendment rights were made pursuant to a constitutionally reasonable school regulation permitting such searches and seizures. We affirm.
By separate jury trials, each of the appellees was convicted of the offense of illegal possession of marijuana in the Circuit Court of Pike County, Alabama, and was sentenced to imprisonment for a period of five years. Each appealed to the Court of Appeals of Alabama, but each failed to comply with Title 7, Section 827(1), Code of Alabama 1940 and to include a transcript of evidence in his appeal. Necessarily the state appellate courts were confined to review of matters contained in the record proper. The State Court of Appeals affirmed both convictions without opinion, and the State Supreme Court granted motions to strike their petitions for certiorari. Marinshaw v. State of Alabama, 1968, 45 Ala.App. 723, 221 So.2d 121; 1968, 284 Ala. 4, 221 So.2d 121; Piazzola v. State of Alabama, 1968, 45 Ala.App. 723, 221 So.2d 404; 1968, 284 Ala. 39, 221 So.2d 404. Their habeas corpus petition to the federal district court was submitted on a stipulation of facts which included, as Exhibit 1, a transcript of the testimony taken in the State Circuit Court on their motion to suppress evidence, and which further stipulated that "The only evidence against Petitioners is the marijuana allegedly found as a result of the search described in Exhibit 1."
The district court condensed the transcript of testimony into the following findings of fact:
Appellees' failure to perfect their respective appeals in a manner which would have required review of the validity of the search and seizure, under the circumstances of this case, does not support an inference of deliberate bypassing of the state court system, nor can it be deemed such an intelligent and understanding waiver as to justify the withholding of federal habeas corpus relief. Fay v. Noia, 1963, 372 U.S. 391, 399, 83 S.Ct. 822, 9 L.Ed.2d 837. Further, their failure effectively to seek review by appeal was not a failure to exhaust "the remedies available in the courts of the State" as required by 28 U.S.C. § 2254, because that requirement "is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court." Id. 372 U.S. at 434, 435, 83 S.Ct. at 847.
A petition for habeas corpus is rarely an effective post-conviction remedy in Alabama for a habeas petition by a state prisoner calls for the very limited inquiry of whether "* * * the court proceeding and conviction under which the prisoner is held are of a court of competent jurisdiction and are regular on their face, it is not permissible to impeach the court's jurisdiction by parol testimony." Vernon v. State, 1941, 240 Ala. 577, 200 So. 560, 563, quoted in Johnson v. Williams, 1943, 244 Ala. 391, 13 So.2d 683, 685; accord, Griffin v. State, 1953, 258 Ala. 557, 63 So.2d 682, 683.
The broader Alabama post-conviction remedy of writ of error coram nobis is not available because "* * * errors concerning facts known to the court with reference to which the court acted at the time of the trial are not reviewable." Johnson v. Williams, supra, 13 So.2d at 686; accord, Duncan v. State, 1964, 42 Ala.App. 509, 169 So.2d 439, 441; Woodard v. State, 1965, 42 Ala.App. 552, 171 So.2d 462, 463, 468. There are no new facts to be presented by coram nobis. The state trial court heard evidence on the claimed illegal search and seizure and denied the appellees' timely filed motion to suppress evidence. Coram nobis does not lie to enable an accused to have a reconsideration of matters in issue and determined by the trial court in the original proceeding. 24 C.J.S. Criminal Law § 1606(10), pp. 705, 706.
The district court properly held that the appellees had exhausted the remedies available to them in the courts of the State of Alabama as required by 28 U.S.C. § 2254.1
The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" (emphasis added). The question is whether in the light of all of the facts and circumstances, including the University regulation, the search which disclosed the marijuana was an unreasonable search. The district judge made reasonableness the touchstone of his opinion as to the validity of the search. We find ourselves in agreement with his view that this search was unreasonable.
In a case where the facts were similar, People v. Cohen, 57 Misc.2d 366, 292 N.Y.S.2d 706, aff'd, 61 Misc.2d 858, 306 N.Y.S.2d 788, Judge Burstein said:
Another case somewhat in point on the facts is Commonwealth v. McCloskey, Appellant, 1970, 217 Pa.Super. 432, 272 A.2d 271. There the court reversed a student's marijuana conviction because the policemen who entered his dormitory room to execute a search warrant did not knock or announce their presence and purpose before entering. In part, Judge Cercone speaking for the majority of the court said:
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...are held to full warrant and probable cause requirements; and the courts addressing this issue here have so held. Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971); Waters v. United States, 311 A.2d 835 (D.C.App.1973); People v. Bowers, 72 Misc.2d 800, 339 N.Y.S.2d 783 (N.Y.C.Crim.Ct.1973) ......
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Searches of the home
...tenant has a reasonable expectation of privacy. Dormitory rooms are protected under the Fourth Amendment. See, e.g., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). The picture is murkier though when there are common areas in an apartment building or rooming house, even when there is a l......
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Searches of the Home
...tenant has a reasonable expectation of privacy. Dormitory rooms are protected under the Fourth Amendment. See, e.g., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). The picture is murkier though when there are common areas in an apartment building or rooming house, even when there is a l......
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Searches of the Home
...tenant has a reasonable expectation of privacy. Dormitory rooms are protected under the Fourth Amendment. See, e.g., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). The picture is murkier though when there are common areas in an apartment building or rooming house, even when there is a l......