Tisnado v. U.S.

• Decision Date: 03 November 1976
• Docket Number: No. 75-1066,75-1066
• Citation: 547 F.2d 452
• Parties: Augustine Rivera TISNADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, John Moran, Director, Arizona Department of Corrections, and Harold Cardwell, Superintendent, Arizona State Prison, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 452

547 F.2d 452

Augustine Rivera TISNADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee John Moran, Director, Arizona Department of Corrections, and Harold Cardwell, Superintendent, Arizona State Prison, Respondents-Appellees.

No. 75-1066.

United States Court of Appeals Ninth Circuit.

Nov. 3, 1976.

As Amended on Denial of Rehearing Dec. 22, 1976.

B. Michael Dann (argued), of Treon, Warnicke & Dann, Phoenix, Ariz., for petitioner-appellant.

Michael A. Johns, Asst. U. S. Atty. (argued), Phoenix, Ariz., for respondent-appellee.

Before WRIGHT and CHOY, Circuit Judges, and ORRICK, ^* District judge.

CHOY, Circuit Judge:

In 1967, Tisnado entered guilty pleas to two counts of conspiracy, 18 U.S.C. § 371, arising out of two bank robberies. He was sentenced to two consecutive five-year terms, the federal sentences to commence at the termination of state sentences then in effect.

In 1974, Tisnado brought a 28 U.S.C. § 2255 challenge against the federal sentences, alleging that the two prior state convictions (one in 1967 and the other in 1954) were illegal, that it was therefore improper for the sentencing court to have considered them, and that such improper consideration had resulted in enhanced federal sentences. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). At the suggestion of the district court, Tisnado also petitioned under 28 U.S.C. § 2254 for habeas corpus relief from the allegedly invalid state priors.

The district court denied the § 2254 petitions on their merits, and, after finding that the § 371 federal sentences would have been the same even if the prior state convictions were invalid, denied the § 2255 petitions as well.

Tisnado appeals. We affirm in part and vacate in part.

I. The 1967 Conviction

Tisnado was convicted and sentenced in state court on July 11, 1967 for illegal possession of marijuana and heroin. The narcotics introduced at the trial had been seized in a search of his residence conducted pursuant to a state search warrant. He now challenges the constitutional validity of the search and seizure on three grounds. First, Tisnado contends that because the affidavit alleged merely that the informant "has proven reliable in the past," compare Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431 (1966), rev'g 206 Va. 499, 144 S.E.2d 298, 299 n.1 (1963); Clemas v. United States, 382 F.2d 403, 406 & n.3 (8th Cir. 1967), it failed to provide underlying facts from which the issuing magistrate could independently conclude that the informant "was 'credible' or his information 'reliable'." Aguilar v. Texas, 378 U.S. at 114, 84 S.Ct. at 1514; United States v. Mulligan, 488 F.2d 732, 735 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); United States v. Shipstead, 433 F.2d 368, 372 (9th Cir. 1970).

Next, he challenges the sufficiency of the affidavit on the ground that it failed to provide underlying facts to support the affiant's statement that the informant "is familiar with narcotics." Tisnado concedes that an allegation of the informant's personal observation of contraband sufficiently establishes that the informant was "relying on something more substantial than a casual rumor." Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); United States v. Larkin, 510 F.2d 13, 15 (9th Cir. 1974). Nevertheless, he argues that Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and Thomas v. Superior Court, 22 Cal.App.3d 972, 99 Cal.Rptr. 647, 650 (1972), require that the affiant provide facts from which the magistrate may himself determine that the informant was "qualified" to identify correctly that which he claims to have observed.

Lastly, Tisnado attacks the five-day delay in execution of the warrant as unreasonable. Officers kept the Tisnado residence under observation during that time and made the search only when he returned to it. The heroin was found on Tisnado's person. Citing Williams v. United States, 418 F.2d 159 (9th Cir. 1969), he maintains that the delay was contrived solely to permit an otherwise unlawful body search.

These contentions were rejected at a suppression hearing which preceded Tisnado's trial. After his conviction, Tisnado took a direct appeal, and the Arizona Supreme Court affirmed. Arizona v. Tisnado, 105 Ariz. 23, 458 P.2d 957 (1969). A reading of the opinion reveals that the Arizona Supreme Court did not then rule on Tisnado's fourth amendment claims. However, that court did reach and decide the issues in a subsequent state habeas corpus proceeding. Finding no unlawful search and seizure, the court denied Tisnado's petition in an unreported opinion, No. H-485-2, dated July 12, 1972.

A. The § 2254 Petition

We decline to reexamine the merits of Tisnado's fourth amendment claims and thus affirm the denial of § 2254 habeas corpus relief.

Tisnado is currently still on parole for the 1967 state conviction. Such a restraint satisfies the custody requirement of 28 U.S.C. §§ 2241(c)(3) & 2254(a). There is, therefore, jurisdiction to entertain Tisnado's § 2254 petition. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

However, in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court 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 habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Id. at 494, 96 S.Ct. at 3052 (footnotes omitted). And, as this circuit has decided that Stone v. Powell is to be given fully retroactive effect, Bracco v. Reed, 540 F.2d 1019 (9th Cir. 1976), it controls the disposition of Tisnado's petition.

There has been no contention by Tisnado that he was in any way denied " an opportunity for full and fair litigation of (his) Fourth Amendment claim(s)" by the state of Arizona. He did litigate these claims at the time of his trial. And, although it does not appear from the record that he in fact aired them on direct appeal, there is no showing that he was denied the "opportunity" to do so. In addition, when his collateral state challenge reached the Arizona Supreme Court in 1972, his search and seizure contentions were rejected after being fully briefed and argued.

Since petitioner's state opportunities to litigate his claims were "full", ¹ and there is no indication that the Arizona procedures were not "fair", we decline to reach the merits of any of petitioner's fourth amendment contentions. ²

The denial of § 2254 habeas corpus relief as to the 1967 conviction is affirmed. ³

B. The § 2255 Petition

We must decide here whether the principle established by the Supreme Court in Stone v. Powell precludes a federal court from reexamining the validity of a prior state conviction which is challenged on fourth amendment grounds in a Tucker -type § 2255 setting. We hold that it does and therefore affirm also the denial of Tucker relief from the 1967 state conviction.

The holding of Stone v. Powell is premised on the belief that the principal function to be served by the fourth amendment exclusionary rule is its deterrent effect on illegal police conduct. See 428 U.S. at 487, 96 S.Ct. at 3048. The Supreme Court concluded that, on balance, the societal costs inherent in both excluding concededly probative evidence from the truthseeking process and allowing relitigation under § 2254 of a claim that had already been denied in state courts outweighed the added deterrent value arising from the concern of law enforcement officials that their conduct might eventually be criticized in collateral federal proceedings. Any impugning of the integrity of the federal judiciary which might result from its allowing a possibly meritorious constitutional claim to go unheard was thought by the majority to be of minimal concern. See 428 U.S. at 482-496, 96 S.Ct. at 3046-3052. Apparently feeling that identical considerations were present in the case of a § 2255 habeas corpus challenge to a federal conviction, the Court expressed its view that, to the extent that Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), rested on constitutional rather than supervisory grounds in sanctioning a fourth amendment collateral assault on a federal conviction, it also was to be rejected. 428 U.S. at 481 & n.16, 96 S.Ct. at 3045.

Thus, according to Stone v. Powell, a federal court may not grant either § 2254 or § 2255 habeas corpus relief on the basis that evidence obtained in an unconstitutional search or seizure was introduced, respectively, at a state or federal trial where the defendant was provided an opportunity to litigate fully and fairly his fourth amendment claim before petitioning the federal court for collateral relief.

A § 2255 Tucker -type petition does not, however, seek habeas corpus relief from an allegedly invalid conviction. Rather, it asks the federal court to reconsider a federal sentence on the ground that that sentence was enhanced through the sentencing court's consideration of an invalid prior state or federal conviction.

In Tucker, the Supreme Court held that where the petitioner came into federal court to challenge a federal sentence armed with a state court declaration that prior state convictions of which the federal sentencing judge had been aware were invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the case was to be remanded for reconsideration of the federal sentence in light of the invalidity of the prior state convictions. The rationale for the holding was clear: The federal sentencing judge might very well have viewed the defendant differently if he were aware that the defendant, instead of having a record of...