Woodard v. Sargent

• Decision Date: 05 August 1983
• Docket Number: No. PB-C-81-433.,PB-C-81-433.
• Citation: 567 F. Supp. 1548
• Parties: Billy WOODARD, Plaintiff, v. Willis SARGENT, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

567 F. Supp. 1548

Billy WOODARD, Plaintiff, v. Willis SARGENT, Defendant.

No. PB-C-81-433.

United States District Court, E.D. Arkansas, Pine Bluff Division.

August 5, 1983.

COPYRIGHT MATERIAL OMITTED

Thomas M. Carpenter, Little Rock, Ark., Michael Chertoff, Latham, Watkins & Hills, Washington, D.C., for plaintiff.

William C. Mann, III, Asst. Atty. Gen., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

EISELE, Chief Judge.

Currently before the Court is Mr. Billy Woodard's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Mr. Woodard was convicted of capital felony murder in Poinsett County, Arkansas Circuit Court on March 4, 1976 and sentenced to death. His conviction was affirmed by the Arkansas Supreme Court on June 27, 1977. Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1981). Permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure was denied on June 29, 1981. Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981). His petition for a Writ of Certiorari in the United States Supreme Court was denied on November 16, 1981. The current petition for a Writ of Habeas Corpus was filed on December 23, 1981, and a stay of execution was granted on December 29, 1981. An evidentiary hearing was held on the petition on January 13, 14, and 24, 1983.

Petitioner raises a number of arguments in support of his contention that his conviction and sentence were unconstitutionally obtained. Each argument will be discussed in turn.

I. PETITIONER'S FOURTH AMENDMENT RIGHTS WERE VIOLATED BY THE INTRODUCTION OF CONFESSIONS OBTAINED AS THE RESULT OF AN ILLEGAL ARREST

Mr. Woodard was convicted of the murder of Mr. Columbus Baker. The evidence against him consisted principally of three confessions given on October 10 and 11, 1975. The petitioner argues that he was arrested without probable cause on October 10 in violation of the Fourth Amendment, and that his confessions were the fruit of this illegal arrest. This argument is based on Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Court has concluded that this issue is not properly cognizable on habeas review.

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the Court held that prisoners in state custody may not challenge their convictions on Fourth Amendment grounds through a collateral attack under 28 U.S.C. § 2254. The Court reasoned that the purpose behind the exclusionary rule, the deterrence of police misconduct, was not served by addressing the merits of the prisoner's Fourth Amendment challenge at the level of federal habeas corpus review. Such a claim was not, therefore, properly reviewable, absent a showing that the petitioner was denied a full and fair opportunity to litigate the claim in the state courts.

The petitioner argues that the Stone rule applies only to the exclusion of physical evidence, and not to the exclusion of custodial statements allegedly obtained in violation of the Fourth Amendment. While that issue was unresolved by the United States Supreme Court at the time the parties briefed it, it has since been addressed by the high court. In Cardwell v. Taylor, ___ U.S. ___, 103 S.Ct. 2015, 76 L.Ed.2d 333 (1983) the Court concluded that a claim based on Dunaway v. New York was subject to the rule in Stone. The Court specifically held that custodial statements which were allegedly obtained as the result of an arrest without probable cause could not be challenged on Fourth Amendment grounds in a federal habeas corpus proceeding.

The petitioner also argues that the preclusion of Stone should not apply in capital cases. There is, however, no precedent for the notion that the application of Stone is predicated on the severity of the sentence. The Stone rationale, that the exclusionary rule has little deterrent value at the stage of habeas corpus collateral review, certainly applies in capital cases. The Court notes parenthetically that Cardwell involved a sentence of 28 separate life sentences.

The Court recognizes that capital cases demand thorough and careful review. Nevertheless, the principles of law which determine whether or not a particular conviction was arrived at by constitutional means, do not change because the case involves the death penalty. The Supreme Court has determined that Fourth Amendment issues, particularly a claim predicated on Dunaway v. New York, are not cognizable on federal habeas corpus review. No exception should be made for those cases in which the severity of the crime has warranted the imposition of the ultimate penalty.

The petitioner also argues that he was denied the opportunity for a full and fair litigation of the Fourth Amendment claim within the meaning of Stone v. Powell. Petitioner's trial counsel filed a motion to suppress the confessions as involuntary under the Fifth Amendment. He did not raise a Fourth Amendment challenge to the confessions, nor was the Fourth Amendment issue raised on appeal. The issue was first raised in Mr. Woodard's Rule 37 Petition in the Arkansas Supreme Court wherein he was represented by his present attorneys. The Court dealt with the issue as follows:

Under the circumstances it seems that this argument is not timely. In any event, the testimony of the officers was that the petitioner voluntarily traveled to the scene of the crime with the deputy and that he was not being held in custody until after he made statements which gave rise to probable cause.

617 S.W.2d at 862.

Petitioner maintains that the failure of his trial counsel to raise the issue amounted to ineffective assistance of counsel. He argues that his attorney's alleged incompetence denied him the opportunity for full and fair litigation of the claim. The Supreme Court has not yet specified what is meant by a "full and fair opportunity" to litigate a Fourth Amendment claim. This Court concludes that the failure of trial counsel to raise the claim is not a denial of the opportunity for such litigation. Stone was bottomed on the premise that the exclusion of evidence on collateral review would have little deterrent effect on police misconduct. This rationale is applicable so long as the petitioner could have raised the Fourth Amendment issue. Only in those cases where the state court refuses to entertain the claim is the state prisoner entitled to raise a Fourth Amendment challenge.

In Lenza v. Wyrick, 665 F.2d 804 (8th Cir.1981) the Court of Appeals applied the bar of Stone where the petitioner had raised the Fourth Amendment issue at trial. The state appellate court refused to rule on the merits of the issue because of a breach of a procedural briefing rule. The Court concluded:

It is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant's use of those processes, that bars federal habeas corpus consideration of claims under Stone. "If state procedures afford the defendant in a criminal case the opportunity to fully and fairly litigate whether evidence obtained in violation of the fourth amendment should be excluded ... then Stone v. Powell precludes federal habeas corpus consideration of those issues whether or not the defendant avails himself of that opportunity." Carver v. Alabama, 577 F.2d 1188 (5th Cir.1978). The Stone bar applies despite a state court's error in deciding the merits of a defendant's fourth amendment claim. Moreover, the Stone bar applies with equal force to procedural mistakes that thwart the presentation of fourth amendment claims ... Johnson v. Meacham, 570 F.2d 918, 920 (10th Cir.1978).

Id. at 808 (other citations omitted).

Lenza establishes that the petitioner's own failure to raise a Fourth Amendment claim does not enable him to argue that he was denied the opportunity to litigate that claim. To hold otherwise would be the clearest example of bootstrapping. The Court is not impressed with petitioner's reference to the Eighth Circuit's citation of the Tenth Circuit's decision in Johnson v. Meachum, supra. There the court applied the Stone v. Powell preclusion where the petitioner had failed to raise the issue at trial. The state appellate court did not consider the merits of the issue because no objection had been made at trial. The Tenth Circuit concluded:

Therefore we hold that where Johnson presented his Fourth Amendment claim to the Wyoming Supreme Court, where the Wyoming Supreme Court applied an adequate procedural ground in refusing to reach the merits of that claim, and where Johnson's claim of ineffective assistance of counsel is not related to this issue, habeas review of the Fourth Amendment claim is barred.

570 F.2d at 920 (Emphasis supplied).

The Tenth Circuit was not, of course, ruling that ineffective assistance of counsel amounts to the denial of an opportunity to litigate the Fourth Amendment claim. The language emphasized above merely points out the narrow scope of the decision. It is evident from the context of the quotation in Lenza above that the Eighth Circuit did not cite Johnson for the narrow dictum to which the petitioner refers.

Moreover, and most important in this Court's view, the claim of ineffective assistance of counsel can be addressed in the context of a Sixth Amendment challenge to the conviction. See, Section II infra. The fact that the particular ineffective assistance of counsel claim arises in the context of a Fourth Amendment issue does not transform that argument into one which escapes the rule of Stone v. Powell. The exclusionary rule does not apply in federal habeas corpus proceedings. The notion that the failure to move for the exclusion of evidence was predicated on trial counsel's incompetence must be analyzed by Sixth Amendment standards which govern the duties of effective representation.

II. INEFFECTIVE ASSISTANCE OF COUNSEL — FAILURE TO ASSERT THE FOURTH AMENDMENT CLAIM

To establish a claim of ineffective assistance of counsel, Mr. Woodard must prove (1)...