Gary M. Holmberg v. Robert F. Parratt, as Warden of the Nebraska Penal and Correctional Complex ( 1977 )

LAY, Circuit Judge.

Petitioner Gary Holmberg was convicted in a Nebraska state court of possession of marijuana with intent to distribute, deliver or dispense; of possession of amphetamines; and of possession of cocaine. He was sentenced to a term of one year and fined. Upon appeal to the Supreme Court of Nebraska he urged that his Fourth Amendment rights against illegal search and seizure had been violated. The court rejected this argument and affirmed the conviction. State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975) (McCown, J., dissenting).

Petitioner then sought and was granted a writ of habeas corpus in the federal district court on the ground that the search of petitioner’s car violated his Fourth Amendment rights. The parties conceded that a Nebraska state trooper stopped petitioner’s vehicle solely to check his driver’s license and his vehicle registration. The state attempted to justify the stop under Neb.Rev. Stat. § 60-435 (R.I.1974), which allows a state patrolman to stop any vehicle to inspect these two items. However, the federal district court, the Honorable Albert G. Schatz, found that “the random stop of petitioner’s vehicle without any founded and reasonable suspicion of criminal activity violated his Fourth Amendment rights against unreasonable search and seizure.” Holmberg v. Parratt, Civil No. 76-L-4 (D.Neb., June 23, 1976).

The order of the district court granting the application for writ of habeas corpus was handed down on June 11, 1976. Thereafter, Judge Schatz released the defendant oil bail pending the state’s appeal to this court, filed on July 6, 1976.

On the same day this appeal was filed the United States Supreme Court decided Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), in which it held:

In sum, we conclude 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 federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.37

37. . . .

. Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right In sum, we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. Our decision does not mean that the federal court lacks jurisdiction over such a claim

Id., at 494, 96 S.Ct. at 3052 and n. 37 (footnote 36 omitted).

This court has applied Stone v. Powell, supra, retroactively. See Rigsbee v. Parkinson, 545 F.2d 56 (8th Cir., 1976).

Under the circumstances we do not review the merits of petitioner’s constitutional claim. We are bound to apply Stone v. Powell, supra, since the petitioner did receive a full and fair hearing in the Nebraska state court. As we read Stone v. Powell, supra, it is immaterial whether the state court misapplies the Fourth Amendment in reviewing a state court conviction. Erroneous application of Fourth Amendment principles by a state court is no longer relevant to the question of whether the federal court may review the merits of the claim.¹

We note that in deciding Stone v. Powell, supra, the Supreme Court recognized the viability of the Supremacy Clause and the need to have the states uniformly apply the Fourth Amendment. It noted that these needs can be fully protected by a state court defendant applying for certiorari from the judgment of the highest state court. 428 U.S. 493, 96 S.Ct. at 3051 n. 35.

In the present case the petitioner did not apply for certiorari from the Supreme Court of Nebraska. However, under the circumstances we do not view the absence of a petition for certiorari from the state conviction to be part of the “full and fair hearing” contemplated in Stone v. Powell, supra,² Nonetheless, in view of our vacating the district court’s grant of the writ on a procedural basis, and in order that petitioner has a full opportunity for federal review consistent with the Supremacy Clause, we direct petitioner’s counsel to petition for certiorari from our judgment of reversal, raising the constitutional ground. The Supreme Court can refuse to hear the case or grant certiorari and review the merits.

Assuming the Supreme Court denies certiorari and in view of the fact that petitioner has only a short time remaining to serve on his sentence, we suggest, but do not require, that the Nebraska Board of Parole grant an immediate hearing on petitioner’s parole and give every consideration to his release. Assuming petitioner has readjusted to society while on bail, this action would avoid disruption of his attempt at rehabilitation. It would be best if this hearing be held before the petitioner is taken back into custody. Petitioner should not be prejudiced for pursuing his habeas remedy pursuant to the federal law which governed his rights prior to Stone v. Powell, supra.

Judgment granting the writ of habeas corpus is vacated; the cause is remanded to the district court with directions to dismiss the petition.

1 . In Wolff v. Rice, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the companion case decided with Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the petitioner’s Fourth Amendment right was clearly violated by an illegal search (see the opinion below, Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975)), but the Supreme Court did not review that claim since it held that the petitioner had a full and fair hearing in the state court.

2 . The Supreme Court in Stone v. Powell, supra, considered the argument that a petitioner may have relied on Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), by failing to file a petition for certiorari with the United States Supreme Court, and found it insufficient to justify only prospective application of its holding. 428 U.S. 495, 96 S.Ct. at 3052 n. 38. This finding also indicates that a petition for certiorari is not a requisite part of the “full and fair hearing in state court.”