Roach v. Parratt

• Decision Date: 17 September 1976
• Docket Number: 76-1216,Nos. 76-1215,s. 76-1215
• Parties: Donald ROACH, Appellee, v. Robert PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellant. Gizelle Pearl GRAVES, Appellee, v. Jacqueline CRAWFORD, Superintendent, Nebraska Center for Women, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 772

541 F.2d 772

Donald ROACH, Appellee, v. Robert PARRATT, Warden, Nebraska Penal and Correctional

Complex, Appellant.

Gizelle Pearl GRAVES, Appellee, v. Jacqueline CRAWFORD, Superintendent, Nebraska Center for

Women, Appellant.

Nos. 76-1215, 76-1216.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1976.

Decided Sept. 17, 1976.

Ralph H. Gillan, Asst. Atty. Gen., Lincoln, Neb., for appellant; Paul L. Douglas, Atty. Gen., on the brief.

Michael T. Levy, Omaha, Neb., for appellee.

Before GIBSON, Chief Judge, LAY and HENLEY, Circuit Judges.

GIBSON, Chief Judge.

The District Court in these federal habeas corpus actions filed by state prisoners pursuant to 28 U.S.C. § 2254 invalidated state judgments of conviction and ordered that petitioners be retried within 90 days or released. ¹ Roach v. Parratt, 407 F.Supp. 703 (D.Neb.1976). A timely appeal was filed by Robert Parratt, Warden of the Nebraska Penal and Correctional Complex, and Jacqueline Crawford, Superintendent of the Nebraska Center for Women, each of whom had custody of the respective petitioners, Donald Roach and Gizelle Pearl Graves. Petitioners had been convicted of unlawful possession of heroin in the Nebraska state courts, and their convictions were affirmed by the Nebraska Supreme Court. State v. Graves, 193 Neb. 797, 229 N.W.2d 538 (1975).

Petitioners assert that the search warrant issued in their case was deficient because the supporting affidavit did not show how the stated reliable informant reached the conclusion that there was heroin located on the premises to be searched. The same issue was fully explored, assessed and tried in the state court.

The District Court found that the first prong of the Aguilar-Spinelli test see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), requiring that the magistrate be given some of the underlying circumstances from which the informant reached his conclusions, had not been satisfied and that Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), prohibited rehabilitation of the affidavit, which failed to set forth probable cause for the issuance of the warrant. It appeared that the composite knowledge of the investigating officers might have been sufficient to constitute probable cause for the issuance of the warrant, had that knowledge, as it pertained to how the informant gained his or her knowledge about the narcotics, been set forth fully in the affidavit presented to the magistrate. The District Court, applying Whitely and our decision in Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975), held that the affidavit was, accordingly, insufficient and could not be rehabilitated by testimony concerning information possessed at the time the warrant was sought but not disclosed to the issuing magistrate.

Subsequent to the decision of the District Court, the United States Supreme Court granted certiorari and reversed our decision in Rice v. Wolff in a decision written by Mr. Justice Powell in Stone v. Powell, and Wolff v. Rice, both cases being dealt with in a single opinion. --- U.S. ----, 96 S.Ct. 3037, 49 L.Ed.2d --- (1976). The Supreme Court there concluded in a 6 to 3 decision, with Justices Brennan, White and Marshall dissenting, that the prior discussion of the scope of federal habeas corpus review in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), was unjustified. The basis of the Kaufman decision, as stated in Stone v. Powell, is as follows:

The discussion in Kaufman of the scope of federal habeas corpus rests on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, 367 U.S. 643 (81 S.Ct. 1684, 6 L.Ed.2d 1081) (1961)...