Williams v. Brown

• Decision Date: 07 January 1980
• Docket Number: No. 79-1264,79-1264
• Citation: 609 F.2d 216
• Parties: Patrick Garrison WILLIAMS, Petitioner-Appellant, v. Bruce BROWN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 216

609 F.2d 216

Patrick Garrison WILLIAMS, Petitioner-Appellant, v. Bruce BROWN, Warden, Respondent-Appellee.

No. 79-1264.

United States Court of Appeals Fifth Circuit.

Jan. 7, 1980.

John C. Swearingen, Jr., Columbus, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before SIMPSON, CHARLES CLARK and FRANK M. JOHNSON, Jr., Circuit Judges.

CHARLES CLARK, Circuit Judge:

In this appeal from the denial of habeas corpus relief, we review the district court's determination that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars review of petitioner's fourth amendment claim, that the state's failure to disclose the identity of an informant did not violate petitioner's fifth and fourteenth amendment rights, and that the state's failure to disclose bargains it had made for the testimony of two witnesses did not violate those same rights. We affirm the denial of habeas relief on the first two issues but conclude that third issue requires further factual development.

On July 12, 1976, Atlanta Municipal Court Judge Ed Brock issued a search warrant (Brock warrant) for petitioner Williams' business premises. An affidavit tendered by Detective Gordon Simpson (Simpson affidavit) based on information supplied by a confidential informant provided probable cause to issue the warrant. On July 13, 1976, Fulton County Superior Court Judge Luther Alverson issued a warrant for Williams' arrest, charging theft by receiving stolen property. Evidence seized pursuant to the Brock warrant provided probable cause to issue the arrest warrant. Judge Alverson also issued a search warrant. A detective's affidavit based on observations made during the execution of the Brock warrant provided probable cause to issue the second search warrant. Justice of the Peace Robert Thompson issued a third search warrant on July 21, 1976.

Williams subsequently was arrested and charged with five counts of theft by receiving stolen property. Counsel for petitioner made a pre-trial motion for the production of exculpatory material. ¹ Counsel also filed a pre-trial motion to suppress, attacking the validity of the search warrants. After two hearings, the trial court denied the motion to suppress. Evidence seized pursuant to the three warrants was introduced against Williams at trial. He was convicted and sentenced to ten years in prison. Williams contested the validity of the Brock warrant on direct appeal. The Georgia Court of Appeals rejected his arguments and affirmed his conviction. Williams v. State, 142 Ga.App. 764, 236 S.E.2d 893 (1977). The Georgia Supreme Court denied an application for a writ of certiorari.

While this action was on direct appeal, Williams' counsel learned that the confidential informant relied upon by Detective Simpson never previously had given information to the police leading either to an arrest in a burglary related crime or to the recovery of large amounts of stolen property. Counsel attempted to raise this issue on direct appeal by filing a supplemental enumeration of error the day the case was argued before the Georgia Court of Appeals. However, the court refused to pass on the pleading because the time for filing an amendment to the enumeration of error had expired. Id. at 769, 236 S.E.2d at 898.

Williams filed a petition for a writ of habeas corpus in the Superior Court of Fulton County, claiming in part that the Brock warrant failed to meet the first prong of the Aguilar-Spinelli test. ² Counsel urged the court to hear testimony on this issue because of the discovery of new evidence not available at the time of trial. The court denied petitioner's request and granted the State's preliminary motion to dismiss this portion of the petition, noting that the trial court "went into that very thoroughly during the course of the trial." ³ The court rejected the petitioner's other contentions and denied the petition for a writ of habeas corpus. An application for a certificate of probable cause to appeal to the Supreme Court of Georgia was denied.

On August 31, 1978, Williams filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, asserting that the search warrants were defective and violated the fourth amendment. Additionally, Williams contended that the prosecutor's failure to disclose both the identity of the confidential informant and the agreements and understandings existing with government witnesses Martin and Smith deprived him of his fifth and fourteenth amendment rights of due process. The district court afforded petitioner a hearing at which oral testimony was given by Justice of the Peace Robert Thompson, Assistant District Attorney Russell Parker, and petitioner's trial counsel, Guy Davis. Additionally, the district court had before it the deposition of Detective Simpson ⁴ and the transcripts of the December 20, 1976, and February 7, 1977, motion to suppress hearings and the April 7, 1978, state habeas corpus proceeding. The district court denied petitioner relief on his fourth amendment challenge, finding that "the Petitioner has clearly had the 'opportunity to litigate' as contemplated in Stone v. Powell." The district court rejected Williams' fifth amendment challenges, noting that "the Superior Court of Fulton County conducted a full and fair hearing on the merits of these contentions and made findings of fact fully supported by the evidence." Accordingly, the district court dismissed the petition for a writ of habeas corpus. Williams appeals.

I. The Bar of Stone v. Powell

Williams contends the failure of the state court to consider the newly discovered evidence relating to the Simpson affidavit at the state habeas corpus proceeding denied him the opportunity for full and fair litigation of his fourth amendment claim. He therefore argues the district court erred in dismissing his fourth amendment claim as barred by Stone v. Powell.

Williams raised various fourth amendment challenges to the search warrants both at the motion to suppress hearing and on direct appeal. He renewed many of these claims in his petition for state habeas corpus relief. These opportunities for full and fair litigation of fourth amendment challenges clearly suffice to bar a federal court from reexamining those claims in a federal habeas corpus proceeding. See Brown v. Wainwright, 576 F.2d 1148, 1149 (5th Cir. 1978). See generally, O'Berry v. Wainwright, 546 F.2d 1204, 1209-14 (5th Cir.), Cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977).

However, at the state habeas corpus proceeding Williams sought to attack the truthfulness of material statements contained in the Simpson affidavit. This particular fourth amendment challenge, together with the evidence petitioner sought to rely on, had not been presented previously. The state habeas corpus court refused to consider the newly discovered evidence and dismissed those portions of the petition relating to possible fourth amendment violations, erroneously concluding that the court "went into that very thoroughly during the trial."

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a criminal defendant, upon a proper preliminary showing, must be afforded a hearing at which the truthfulness of factual statements made in an affidavit supporting a search warrant can be challenged. The Court stated:

(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-156, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672. The court then set out the preliminary showing that must be made before an evidentiary hearing is required.

To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and, if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth Amendment, to his hearing.

Id. at 171, 98 S.Ct. at 2685, 57 L.Ed.2d at 682 (footnote omitted).

At the state habeas corpus proceeding, Williams made the requisite preliminary showing that, if made at a pre-trial motion to suppress stage, would have entitled him to a hearing under Franks. ⁵ The Supreme Court characterized its opinion in Franks as being of "limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on the allegations of misstatements must be accorded." Id. at 167, 98 S.Ct. at 2683, 57 L.Ed.2d at 679. For purposes of the present appeal, we assume without deciding that, upon both a demonstration of newly discovered evidence ⁶ and the...