U.S. ex rel. Maxey v. Morris

• Decision Date: 28 November 1978
• Docket Number: No. 78-1228,78-1228
• Citation: 591 F.2d 386
• Parties: UNITED STATES of America ex rel. Harold D. MAXEY and Robert P. Maxey, Petitioners-Appellants, v. Ernest MORRIS, Warden, etc., and Charles Rowe, Director, etc., Respondents-Appellees. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 386

591 F.2d 386

UNITED STATES of America ex rel. Harold D. MAXEY and Robert

P. Maxey, Petitioners-Appellants, v. Ernest MORRIS, Warden, etc., and Charles Rowe, Director,

etc., Respondents-Appellees.

No. 78-1228.

United States Court of Appeals, Seventh Circuit.

Heard Nov. 28, 1978.

Decided Jan. 5, 1979. ^*

Opinion Jan. 31, 1979.

Daniel D. Yuhas, Asst. State App. Defender, Springfield, Ill., for petitioners-appellants.

Thomas C. Crooks, Asst. Atty. Gen., Mark Rotert, Chicago, Ill., for respondents-appellees.

Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge. ^**

CUMMINGS, Circuit Judge.

Appellants were found guilty of murder in a 1973 state court jury trial, and sentenced to indeterminate terms of 30 to 60 years in the Illinois State Penitentiary. After unsuccessfully appealing their convictions in the Illinois courts, appellants filed a federal habeas corpus petition ¹ arguing that because certain evidence seized pursuant to an allegedly invalid search warrant was not suppressed at their trial their Fourth Amendment rights had been violated.

The district court dismissed the petition for the writ of habeas corpus. United States ex rel. Maxey v. Morris, 440 F.Supp. 56 (E.D.Ill.1977). Judge Morgan held that the petitioners had been afforded a full and fair opportunity to litigate their Fourth Amendment claim in the Illinois courts and that federal habeas corpus relief was therefore precluded by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, rehearing denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158. He then issued a certificate of probable cause to appeal his ruling. ² We affirm.

Appellants' sole objection to the search warrant is that it was based on an affidavit signed by a fictitious affiant using the name "John Doe." No objection is made to the sufficiency of the contents of the affidavit, and it is not contended that the affidavit was false or that the appellants were unaware that the name appended to it was fictitious. The affidavit was accompanied by a "supplemental affidavit," signed by a local police officer, in which he averred that he had interviewed the "John Doe" affiant and also added numerous specific details establishing probable cause to search petitioners' premises for certain automobiles and firearms. This is the evidence appellants now assert should have been suppressed.

Appellants contend that a search pursuant to a warrant based on an affidavit signed by a fictitious affiant is Per se unconstitutional under this Court's holding in United States ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968). Appellees suggest that if we reach the merits of this case, we should overrule our decision in Pugh. In support of this result, they point out that Pugh has never been approved by the Supreme Court and that it stands alone in its constitutional holding. ³ In addition, Rule 41 of the Federal Rules of Criminal Procedure, which required, at the time Pugh was decided, that the warrant state the names of affiants has subsequently been changed so that the names need no longer appear on the warrant. We do not reach the merits of this dispute about the holding of the Pugh case because we agree with the district court that the appellants' failure properly to raise their constitutional claims in the state courts precludes federal habeas corpus relief.

Appellants concede that they did not file a motion to suppress evidence prior to trial, did not object to the admission of the evidence at trial, and did not raise the issue of the alleged invalidity of the search warrant in a post-trial motion (Br. 5, 6, 10). The constitutional question was also not specifically raised on direct appeal to the Illinois Appellate Court ⁴ and apparently not raised at all in the petition for leave to appeal to the Supreme Court of Illinois (Br. 6). Leave to take that appeal was denied.

As the district court correctly concluded, the federal habeas corpus writ is unavailable in this case because of the Supreme Court's holding in Stone v. Powell, supra. In Stone, the Court held that if the defendant had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts, he could not later bring a collateral attack in the federal courts seeking the suppression of evidence. Judge Morgan correctly applied the Stone v. Powell doctrine when he held that

"petitioners are not entitled to federal habeas corpus relief because, in essence, they seek to bypass the state court system and to litigate their Fourth Amendment claim for the first time by way of this proceeding. This they cannot do. A state prisoner is not entitled to habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial where the state provided an opportunity for full and fair litigation of the Fourth Amendment claim. Stone v. Powell, 428 U.S. 465 (96 S.Ct. 3037, 49 L.Ed.2d 1067) (1976), Reh. denied, 429 U.S. 874, (97 S.Ct. 197, 50 L.Ed.2d 158) (1976). The State of Illinois has done nothing to deny petitioners the opportunity to fully litigate their Fourth Amendment claims." (Footnote omitted.) (440 F.Supp. at 58.)

Appellants argue that Stone v. Powell does not bar their petition because they had no full and fair opportunity to litigate the question in the Illinois courts. First, they point out that it was in fact never litigated. This, of course, is their own fault since they never raised it. We do not believe that Stone v. Powell can be avoided by the simple act, whether it be intentional or inadvertent, of not raising constitutional objections until a collateral attack is mounted on an adverse judgment. Several courts have held that Stone requires only that the defendant have an opportunity to litigate in the state courts. Hines v. Auger, 550 F.2d 1094, 1097 (8th Cir. 1977); United States ex rel. Petillo v. New Jersey, 562 F.2d 903, 906 (3d Cir. 1977); Denti v. Commissioner of Correctional Services, 421 F.Supp. 557, 559 (S.D.N.Y.1976). The Second Circuit has twice confronted the question of whether this opportunity is present when the defendant could have raised the constitutional issue in the state courts. It concluded that since Stone requires only the opportunity to litigate in the state courts, a defendant's failure to seize that opportunity does not entitle him to a writ under 28 U.S.C. § 2254. Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (En banc ); Pulver v. Cunningham, 562 F.2d 198 (2d Cir. 1977). See also O'Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977) (issue raised on state appeal but not at trial presents full and fair opportunity to litigate).

This Court reached a similar conclusion recently in United States ex rel. Barksdale v. Sielaff, 585 F.2d 288 (7th Cir. 1978). In Barksdale, the Fourth Amendment question was raised at trial but not preserved on direct appeal in the Illinois courts. Relying on Gates, supra, and Pulver, supra, this Court held that the defendant's failure to raise the issue on appeal in the state courts did not suffice to avoid Stone. Barksdale, supra at 292-293. We now hold that if a defendant had an opportunity to litigate his constitutional claim fully and fairly in the state courts, his failure to do so will not entitle him to obtain a federal writ of habeas corpus.

Appellants, however, interpose a second and more imaginative objection to the application of the Stone doctrine to them. They point out that although United States ex rel. Pugh v. Pate, supra, was based on the Fourth Amendment and purported to apply to state courts, the Illinois courts have nevertheless steadfastly refused to follow it. In People v. Stansberry, 47 Ill.2d 541, 268 N.E.2d 431 (1971), certiorari denied, 404 U.S. 873, 92 S.Ct. 121, 30 L.Ed.2d 116, the Illinois Supreme Court held that it was not bound by the Pugh decision and that search warrants based on affidavits signed with fictitious names were not invalid as a matter of law. The Illinois courts have continued to follow Stansberry rather than Pugh. People v. Bell, 53 Ill.2d 122, 290 N.E.2d 214 (1972); People v. Jackson, 37 Ill.App.3d 279, 345 N.E.2d 509 (4th Dist. 1976); People v. Hall, 45 Ill.App.3d 469, 4 Ill.Dec. 239, 359 N.E.2d 1191 (4th Dist. 1977); People v. Greenman, 38 Ill.App.3d 734, 348 N.E.2d 465 (4th Dist. 1976); People v. O'Neal, 40 Ill.App.3d 448, 352 N.E.2d 282 (1st Dist. 1976). Hence, appellants argue, because it would have been futile for them to litigate the fictitious affiant issue in the Illinois courts, they had no real opportunity to do so, and Stone v. Powell, supra, should not bar federal habeas corpus relief.

We cannot agree. As Judge Morgan pointed out, Illinois did nothing to foreclose appellants' raising their constitutional question. Their objection appears to be not that they could not litigate their claim, but that it was almost certain that if they did, they would not receive the answer they wanted. What appellants are seeking here federal court review of state court constitutional holdings is what Stone v. Powell sought to avoid. Stone Reflected the Supreme Court's belief that

"the state courts (are) as fair and competent forums for the adjudication of federal constitutional rights (as federal courts are) * * * (W)e are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law." 428 U.S. at 493-494, n. 35, 96 S.Ct. at 3052, n. 35.

Stone thus establishes that state court constitutional holdings, at least in the context of Fourth Amendment questions involving the application of the exclusionary rule, are not subject to collateral review merely because the federal courts would decide the issue differently. ⁵ The remedy for error in the state courts is by way of writ of certiorari...