Walker v. Peppersack

• Decision Date: 27 March 1963
• Docket Number: No. 8655.,8655.
• Citation: 316 F.2d 119
• Parties: Cornelius WALKER, Jr., Appellant, v. Vernon L. PEPPERSACK, Warden, Maryland Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

316 F.2d 119 (1963)

Cornelius WALKER, Jr., Appellant, v. Vernon L. PEPPERSACK, Warden, Maryland Penitentiary, Appellee.

No. 8655.

United States Court of Appeals Fourth Circuit.

Argued January 21, 1963.

Decided March 27, 1963.

Daniel J. Meador, Charlottesville, Va. (court-assigned counsel) F. D. G. Ribble, Charlottesville, Va., on brief, for appellant.

Robert F. Sweeney, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

This is an appeal by Cornelius Walker, Jr., a prisoner of the State of Maryland, from a decision of the United States District Court for the District of Maryland denying relief in habeas corpus proceedings and dismissing his petition.

Walker was tried on December 22, 1959, in the Criminal Court of Baltimore before a judge, without a jury, on a charge of armed robbery. He was found guilty and was sentenced to imprisonment for a term of twenty years. At the trial the prosecution presented evidence showing that a robbery had occurred at a cut-rate liquor store in Baltimore on the night of November 11, 1959. In the store was a display case where watches and jewelry were kept for sale. Two men, one of whom was later identified by a prosecuting witness as Walker, came into the store. Walker had a gun. They took about fifteen "Genova" watches and some money from the cash register and departed.

Walker had at times lived or resided in an apartment at No. 8 Bond Street in Baltimore with one Estelle Jackson who was "sometimes referred to as his common-law wife", according to the District Judge. On the day following the robbery, a police sergeant and three city detectives went to 8 Bond Street shortly after noon. Finding no one there, without a search warrant and without permission from anyone, these officers entered the apartment, searched it and found in a brown paper bag seven "Genova" watches and $6.91 in pennies. Within a short time after the search and without an arrest warrant, the police arrested Walker and another person on the street nearby.

At trial the paper bag, these watches and the coins were introduced in evidence by the prosecution. Walker's court-appointed counsel then interposed no objection although he later moved to strike this evidence on the ground that these articles were obtained by the state through an illegal search. The motion to strike was denied by the trial court, seemingly, as stated by the District Court, on the principal ground that only "one who has control of the premises" can object to the search and Walker did not have the requisite control. However, both Estelle Jackson and Walker testified that they were living there at the time of the search and at one point Walker spoke of the apartment as "my house"; he further testified that on the night of the robbery Estelle Jackson admitted him to the apartment as he had lost his key. Factually the trial court appears to have been in error because the testimony clearly shows that Walker was living in that apartment at the time of the search.

Following his conviction and then represented by another court-appointed attorney, Walker appealed to the Court of Appeals of Maryland on the sole ground that the evidence was insufficient to support the guilty verdict. His conviction was affirmed.¹ Thereafter he proceeded in the Baltimore Criminal Court under the Uniform Post Conviction Procedure Act of Maryland² where he challenged the constitutional validity of his conviction and sentence on the ground, inter alia, that evidence obtained by an illegal search and seizure had been introduced against him at his trial. His petition for relief was denied in April 1961 for the reason that, because of his failure to raise the point on direct appeal, he had waived objection to the admission of that evidence and was thus precluded in the post-conviction proceeding from attacking the legality of the search and the use at the trial of the evidence secured thereby. Application for leave to appeal from this decision was denied by the Court of Appeals of Maryland.³ Walker's application to the Supreme Court of the United States for certiorari was denied.⁴

On February 1, 1962, Walker filed his verified petition for a writ of habeas corpus in the United States District Court for the District of Maryland alleging, in substance, that he was confined in violation of the United States Constitution because his conviction and sentence were obtained through the use of unlawfully seized evidence. His petition contained the general allegation that he had exhausted his state remedies and, inter alia, the specific allegation that he had applied to the Supreme Court of the United States for certiorari following affirmance of his conviction by the Court of Appeals of Maryland on direct appeal, which application was denied. Pursuant to a show cause order, the appellee (hereinafter referred to as "Warden") filed an answer asserting only that the petition should be dismissed without a hearing because Walker's claim of violation of his constitutional rights had been theretofore fully considered and determined since he had made substantially the same claim in the state courts under the Post Conviction Procedure Act and had been denied relief. Thus, there was no jurisdictional issue as to exhaustion of state remedies raised by the answer. The District Court, after a hearing at which Walker was personally present and represented by court-appointed counsel, denied relief and dismissed the petition. The District Judge said, in a written opinion, that he found no basis for holding that the search and seizure were illegal even though he did find that there was no search warrant and that the officers went into the apartment without permission. The District Judge further held that, in any event, Walker had waived this point by failing to raise it on appeal to the Court of Appeals of Maryland. He noted that the Baltimore Criminal Court, on post-conviction hearing, had refused to consider the question of the legality of the search and seizure because it was not raised on appeal; therefore, he concluded that the question was not reviewable on federal habeas corpus.

The Warden now undertakes, in his brief on appeal, to question Walker's exhaustion of state remedies, asserting that Walker did not apply to the Supreme Court of the United States for certiorari following affirmance of his conviction by the Court of Appeals of Maryland on direct appeal. The District Judge did not consider this question or make a finding with reference thereto in view of his other findings and conclusions stated in support of the denial of relief. However, in his written opinion he did observe that "counsel for the state contends" that Walker failed to apply for certiorari following affirmance of his conviction on direct appeal. Our only knowledge of the proceedings before the District Court is gleaned from that court's opinion. Perhaps counsel for the Warden may have sought to raise this question below in oral argument but there is nothing before us to indicate anything other than a bare and unsupported contention that Walker had failed, in this one allegedly necessary particular, to exhaust available state remedies.

The Warden could properly have raised an issue as to Walker's failure to exhaust state remedies by an appropriate allegation in his answer to the show cause order but he did not do so. Title 28 U.S.C. § 2248 provides:

"The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." (Emphasis supplied.)

In his brief the Warden suggests a negative approach to the ascertainment of facts allegedly determinative of this question by stating — "Appellee avers that an examination of the records contained in the office of the Clerk of the Court of Appeals of Maryland and the records in the office of the Attorney General of Maryland indicate that no such application for certiorari following direct appeal was, in fact, made." Perhaps the Warden means that he has made such examination and that his statement in his brief of the results of such examination should be accepted by us as proof of Walker's failure to apply for certiorari. Surely he does not intend to suggest that this court should make an examination of these records. In what manner, then, was the question raised below other than as stated by the District Court — "counsel for the state contends" — and what evidence, if any, was offered to support the contention? We suggest that the Warden could have avoided these apparent uncertainties by a specific allegation in his answer that Walker failed to apply for certiorari following the direct appeal of his conviction. 28 U.S.C. § 2248, supra. Walker does not discuss this question in his brief and understandably so, since it is apparent that neither he nor his counsel had fair notice or indication that federal jurisdiction would be seriously challenged on this ground. We respectfully further suggest that it is the better practice to raise such issues by specific allegations in the answer to the show cause order, and by specific denial of the truth of allegations contained in the petition for habeas corpus.

However, assuming that an issue as to the failure to exhaust available state remedies had been properly raised below and is properly before us, we conclude that the Warden's contention is without merit. A brief summary of the steps admittedly taken by Walker follows. After his conviction, he appealed directly to the Court of Appeals of Maryland assigning as his only ground the insufficiency of the evidence. He then sought in the post-conviction proceeding to raise the constitutional question as to the use, at the trial, of evidence obtained...