Schmear v. Gagnon

• Decision Date: 09 November 1967
• Docket Number: No. 67-C-100.,67-C-100.
• Parties: Arnold Grover SCHMEAR, 15840-A, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

276 F. Supp. 4

Arnold Grover SCHMEAR, 15840-A, Petitioner, v. John R. GAGNON, Warden, Wisconsin Correctional Institution, Respondent.

No. 67-C-100.

United States District Court W. D. Wisconsin.

November 9, 1967.

Paul R. Nesson, Jr., Madison, Wis., for petitioner.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.

OPINION

JAMES E. DOYLE, District Judge.

This is a petition for a writ of habeas corpus in which petitioner, an inmate of a Wisconsin correctional institution, claims that he is held in custody in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States.

Petitioner was convicted of the crime of rape in violation of § 944.01, Wis. Stats. He was sentenced to an indeterminate term of not more than ten years. Upon direct appeal, the conviction was affirmed by the Wisconsin Supreme Court in State v. Schmear, 28 Wis.2d 126, 135 N.W.2d 842 (1965). A petition for a writ of habeas corpus in the state court was denied.

A second petition for habeas corpus was filed in the state court alleging that evidence seized pursuant to an arrest was inadmissible at trial because the warrant was improperly issued. Substantially the same question is presently raised here.

The Wisconsin Supreme Court referred the matter to the Circuit Court for Jefferson County to hear, try and determine the issues of fact raised by the pleadings. A full evidentiary hearing was conducted before the Honorable Henry G. Gergen, Jr. Judge Gergen executed and reported certain findings of fact.

The Wisconsin Supreme Court, in State ex rel. Schmear v. Gagnon, 35 Wis. 2d 447, 151 N.W.2d 20, 21 (1967), denied petitioner's second habeas corpus application. It therefore appears, and I find, that petitioner has exhausted the remedies available in the courts of the State of Wisconsin as required by 28 U.S.C. § 2254(b).

In his pro se petition to this court petitioner claims that evidence obtained pursuant to an invalid arrest warrant was admitted at his trial, and that the arrest warrant was constitutionally defective because it was executed by the district attorney and not by a neutral and detached magistrate.

Leave was granted to file the petition in forma pauperis, respondent was directed to respond to the said petition, and a response was filed. Paul R. Nesson, Jr., of Madison, Wisconsin, was appointed by this court as attorney to represent petitioner. The court expresses its appreciation to Mr. Nesson, who has given his time and effort without compensation.

The parties have agreed that no further evidentiary hearing is needed. The cause has been submitted on the pleadings, the transcript of the Wisconsin state court proceedings and the exhibits received therein, and on the briefs and oral argument.

From an examination of the entire record it appears that petitioner did receive a full and fair hearing before Judge Gergen in the state proceeding and that the state court has reliably found the relevant facts. Under 28 U.S.C. § 2254(d), unless some defect in the state court hearing or findings of fact is established or otherwise appears, the state court findings of fact shall be presumed to be correct. It has not been alleged, nor has it otherwise appeared, that there exists any defect in the state court hearing and subsequent findings of fact. Those findings of fact are hereby presumed to be correct. In pertinent part, they are:

(1) Petitioner was arrested upon a warrant charging forcible rape issued by the District Attorney of Jefferson County.

(2) Pursuant to this arrest petitioner's T-shirt, trousers, yellow shirt and shorts were seized and transmitted to the state crime laboratory for examination.

(3) A criminologist employed by the state crime laboratory testified at trial with respect to her laboratory examinations of the clothing. She testified that she was able to identify stains on the clothing as blood and semen stains.

(4) The failure to object on search and seizure grounds was not a strategic maneuver, but rather was based upon the conclusion of the petitioner's attorney that he did not have a chance to prevail on such a motion.

(5) Petitioner was thereafter convicted and committed to the Wisconsin State Prison for a period of ten years.

Respondent has conceded at oral argument that if it was error to receive in evidence at the trial the clothing obtained pursuant to the execution of the arrest warrant, the error was not harmless.

"Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently." Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963).

Deferring to the state court's findings of fact, and applying the federal law independently, I hold petitioner was arrested upon a warrant which was invalid because it was issued by a district attorney and not by a neutral and detached magistrate.

The Fourth Amendment to the United States Constitution reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The guaranties of the Fourth Amendment apply to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). These guaranties apply to arrest warrants as well as search warrants. Wong Sun v. United States, ...