Ryder v. Morris

• Decision Date: 07 February 1985
• Docket Number: No. 83-2529,83-2529
• Citation: 752 F.2d 327
• Parties: Virgil F. RYDER, Appellant, v. Terry MORRIS, Superintendent, Moberly Training Center for Men, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 327

752 F.2d 327

Virgil F. RYDER, Appellant, v. Terry MORRIS, Superintendent, Moberly Training Center for

Men, Appellee.

No. 83-2529.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1984.

Decided Jan. 11, 1985.

Rehearing and Rehearing En Banc Denied Feb. 7, 1985.

Springfield Baldwin, St. Louis, Mo., Court-appointed, for appellant Virgil Franklin Ryder.

John Ashcroft, Atty. Gen., Henry T. Herschel, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Virgil Franklin Ryder appeals from a final judgment entered in the United States District Court for the Eastern District of Missouri denying his petition under 28 U.S.C. Sec. 2254 for habeas corpus relief. The district court dismissed the case without a hearing, holding that Ryder's claim he had been convicted of second degree murder on the basis of illegally seized evidence was barred from federal habeas review by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). For reversal, Ryder contends that in the circumstances of this case (1) the district court's reliance on Stone v. Powell was misplaced; and (2) his sentence was based on an erroneous presentence report, in violation of his rights under the fifth, sixth, and fourteenth amendments. We conclude the district court did not err in holding Ryder's conviction had been constitutionally obtained; however, we remand for hearing in the district court of Ryder's challenge to the legality of his sentence.

In the early morning of May 15, 1977, Wanda Wykoff sustained what later proved to be a fatal gunshot wound to the head. Earlier in the evening, Wykoff had accompanied Ryder to a dance; Ryder had been drinking heavily. The shooting occurred in the two story apartment Wykoff shared with Ryder.

After Wykoff had been shot, Ryder contacted a telephone operator, and asked that she summon an ambulance. Police arrived on the scene first; they found Ryder's door open, and Ryder, with his back to the door, bending over Wykoff, who was lying at the base of the apartment's staircase. Without any specific invitation from Ryder, police entered, seizing a gun that was lying on or near Wykoff. Although Ryder was not formally arrested, several officers insisted that he accompany them to the police station, give them a written statement, and undergo gunshot residue and breathalyzer tests. Ryder's statement apparently indicated that Wykoff had shot at him from the top of the stairs as he walked down, and then had shot herself.

At varying times after the police entered Ryder's apartment, they seized the following items: a gun box; two spent shells; one live round; two "projectiles"; three pieces of wallboard bearing marks of projectile impact; and the watch and shirt Ryder had been wearing. These items were found in various rooms on both the first and second floors. Later, the items were offered into evidence by the prosecution when Ryder was tried in the Circuit Court of Warren County, Missouri for second degree murder of Wykoff. At trial, Ryder relied on a defense of suicide; his attorney did not object to the admission into evidence of the items seized from the apartment. The jury found Ryder guilty of second degree murder.

After the verdict had been returned, and in the presence of Ryder and his attorney, the trial judge indicated a presentence investigation would be ordered. There were no objections. Subsequently, Ryder was sentenced to sixty-five years of imprisonment. At the sentencing hearing, the trial judge mentioned that he had received the presentence report, but did not question Ryder or Ryder's attorney about matters contained in the report. Apparently, neither Ryder nor his attorney actually saw the report until two years later.

I. Illegal Search

Ryder contends that police violated his fourth amendment rights by searching his apartment without having first obtained a warrant. He further contends that the prosecutor should not have been permitted to introduce the fruits of that search into evidence against him; and also that his trial attorney had provided ineffective assistance in failing to challenge the admissibility of the physical evidence.

With regard to Ryder's fourth amendment claim, the district court held:

The United States Supreme Court in Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037 [3046] 49 L.Ed.2d 1067 (1976) 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 his trial" .... Thus, the issue before this court is whether petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state courts of Missouri.

The opportunity for a full and fair hearing was clearly present in this case. Missouri law recognizes the invalidity of illegally seized evidence at trial, Missouri Constitution, Article I, Sec. 15, and judicial remedies are available to litigate such claims. State v. Overstreet, 551 S.W.2d 621 (Mo. banc 1977), State v. Peterson, 583 S.W.2d 277 (Mo.App.1979). Petitioner's claim was in fact considered by the trial court [when that court passed on a motion Ryder had filed for post-conviction relief under Mo.R.Civ.P. 27.26]. A full evidentiary hearing was held pursuant to this motion, and evidence on petitioner's claim was presented. Therefore, since petitioner was afforded the opportunity to fully and fairly litigate his Fourth Amendment claim, his claim is not a cognizable ground for relief in a federal habeas action.

We agree with the district court's reasoning.

Ryder, however, makes the following arguments that his opportunity to raise the fourth amendment claim in Missouri courts was less than full and fair: (1) the 27.26 trial judge erroneously placed the burden on Ryder to demonstrate that the search had been unconstitutional; (2) the state judge who heard his 27.26 motion showed "personal bias" by making a baseless finding Ryder had consented to the search; (3) the prosecutor "put words in Ryder's mouth" during cross-examination at the 27.26 hearing; (4) the 27.26 hearing did not fully develop the facts relevant to the legality of the search; and (5) no Missouri appellate court has addressed Ryder's fourth amendment claim.

We must reject the above arguments. We believe the propriety of the 27.26 judge's allocation of the burden of proof is a matter the Stone decision excluded from federal habeas review. See Stone v. Powell, 428 U.S. at 493 n. 35, 96 S.Ct. at 3052 n. 35; Lenza v. Wyrick, 665 F.2d 804, 808-09 (8th Cir.1981) (even if federal court disagrees with state court's resolution of fourth amendment issue, and with state appellate court's reliance on state procedural rule to avoid reaching fourth amendment issue, federal court may not review issue under 28 U.S.C. Sec. 2254). Even assuming that Stone would not preclude consideration of the other arguments suggested by Ryder, we must reject those arguments also. The 27.26 judge did not make a formal finding of fact that Ryder had expressly consented to the search, and we see no indication of bias. Moreover, testimony presented at the 27.26 hearing was sufficient to enable the judge to rule on the legality of the search--it described the circumstances of the entry and search by the police, and also indicated that not all items seized had been in plain view. In addition, we have no doubt that if indeed the prosecutor "put words in Ryder's mouth" at the hearing, the state judge who presided at the hearing was in the best position to determine this, and to evaluate Ryder's cross-examination testimony accordingly. Finally, although Stone v. Powell requires that the state provide "an opportunity for a full and fair hearing" of fourth amendment claims, we cannot say that this requirement is satisfied only in those cases in which a state appellate court has actually addressed the fourth amendment issues. See Brunson v. Higgins, 708 F.2d 1353, 1360-61 (8th Cir.1983). We conclude Stone v. Powell bars review of Ryder's fourth amendment claim.

As noted, Ryder also raises his allegations of illegal search and seizure in the context of an ineffective assistance of counsel claim. There may be some doubt as to whether Stone bars federal habeas corpus review based upon sixth amendment claims. Christian v. McKaskle, 731 F.2d 1196, 1199 (5th Cir.1984); Hall v. Iowa, 705 F.2d 283 (8th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 339, 78 L.Ed.2d 307 (1983); Li Puma v. Commissioner, 560 F.2d 84, 93 n. 6 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977); Sallie v. North Carolina, 587 F.2d 636, 640-41 (4th Cir.1978), cert. denied, 441 U.S. 911, 99 S.Ct. 2009, 60 L.Ed.2d 383 (1979). Thus, we will address Ryder's allegations that his attorney was ineffective in failing to prevent the fruits of the search from being admitted into evidence.

The Supreme Court held recently that a convicted defendant claiming counsel's assistance was so defective as to require reversal of the conviction must show (1) that the errors counsel made were so serious "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment"; and (2) that the errors were so prejudicial to the defendant there is a "reasonable probability" they changed the result of the trial. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). Strickland cautioned that judicial review of an attorney's performance should be "highly deferential," and should take into account the "distorting effects of hindsight," the "wide range of reasonable professional assistance," and "the presumption ... the challenged action 'might be considered sound trial strategy.' " 104 S.Ct. at 2065, 2066 (citations omitted).

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