Published in slightly different form under the title “Federal Postconviction Relief,” 4 Search and Seizure Law Report 1 (March 1977).  See also Semeraro, “Enforcing Fourth Amendment Rights Through Federal Habeas Corpus,” 34 Search and Seizure Law Report 1 (July/August 2007).

A provision of the federal habeas corpus statute, 28 U.S.C. § 2254(a), authorizes federal district courts to grant habeas corpus relief to persons detained pursuant to a state court judgment whenever the detention is in violation of federal law.  But does § 2254(a) authorize federal courts to grant habeas corpus relief to state prisoners convicted on the basis of evidence seized in violation of the Fourth Amendment?

The Mapp holding

The answer to this question would seem to be affirmative.  This is because over fifteen years ago in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the U.S. Supreme court held that evidence of guilt seized by violating the Fourth Amendment is, on proper objection, inadmissible in a state criminal trial.  Moreover, in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), the Court granted habeas corpus relief to state prisoners on the ground that illegally seized evidence had been used at trial.  In addition, on several other occasions between 1965 and 1975 the Court accepted jurisdiction in habeas corpus cases brought by state convicts raising Mapp claims, often over dissent that such claims were not cognizable in a § 2254(a) proceedings.  See, e.g., Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Schneckloth v. Bustamonte, 412 U.S. 218,  93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The decision in Stone v. Powell

Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), has a long procedural history.  The petitioner was charged with the crime of murder in a California state court.  At trial the police officer who arrested the petitioner was permitted to testify that in the course of a search incident to the arrest a pistol (subsequently identified by another witness as the murder weapon) was found on the petitioner’s person.  The petitioner objected to the officer’s testimony, claiming that it was inadmissible under Mapp as the product of an illegal arrest made pursuant to an unconstitutional vagrancy ordinance.  The petitioner was convicted, and in an unreported decision a California appellate court affirmed, holding that admission of the testimony, if erroneous, amounted to harmless error.  The petitioner then instituted a federal habeas corpus proceeding under § 2254(a), again claiming that admission of the testimony violated his rights under Mapp.  The court of appeals reversed an order of the district court denying relief, holding that (1) the vagrancy law was unconstitutional under Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); (2) the policeman’s testimony was inadmissible under Mapp as the product of a search which was unreasonable because it was conducted pursuant to an illegal arrest; and (3) use of the testimony was not harmless error.  Powell v. Stone, 507 F.2d 93 (9th Cir. 1974).

The Supreme Court then granted the warden-respondent’s petition for certiorari and reversed.  Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).  The Court did not reach the merits of the petitioner’s claim that the search and seizure resulting in the testimony of the arresting officer was illegal.  Instead, the Court held that, absent special circumstances, it is proper for a federal court to dismiss, without inquiring into the merits, any § 2254(a) habeas corpus petition which alleges that evidence seized in violation of the Fourth Amendment was used to obtain the conviction under attack.  The Court said: “[W]here the State has provided an opportunity for a full and fair litigation of the Fourth Amendment claim, the Constitution does not require that a state prisoner be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”  Id. at 494-95, 96 S.Ct. at 3052.

Supreme Court’s rationale

The Court rested its decision to exclude practically all Mapp claims from § 2254(a) proceedings on these three premises: (1) factual guilt or innocence should be the central question in a criminal proceeding; (2) the Mapp exclusionary rule, which deflects from truth-finding, is calculated to deter police violation of the Fourth Amendment; (3) the deterrent effect on police, if any, that results from allowing Mapp claims to be asserted in § 2254(a) cases is far outweighed by the need for admitting evidence which, although illegally seized, is highly probative of the issue of guilt or innocence.  Id. at 482-94, 96 S.Ct. at 3046-51.  The Court distinguished Whiteley and Mancusi, supra, where state convicts were granted habeas corpus relief because of an illegal search and seizure, and the earlier habeas cases, where it was implied that Mapp claims were cognizable, on the grounds that in none of these cases had the Court focused directly on “the issue of the substantive scope of the writ.”  Id. at 482 n. 15, 96 S.Ct. at 3045 n. 15.

Retroactivity of Stone v. Powell

Prior to Stone v. Powell state courts convicts dissatisfied with state court rejection of a search and seizure claim and desirous of renewing the claim in a federal tribunal followed one of three courses of actions: (1) they sought direct review of the conviction by filing a certiorari petition in the U.S. Supreme Court, see, e.g., Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); (2) they filed a habeas corpus petition under § 2254(a) in the appropriate federal district court without first seeking certiorari, see, e.g., Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972); or (3) they filed a § 2254(a) habeas corpus petition in a district court after unsuccessfully seeking certiorari, see, e.g., Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Except when the state has not provided an opportunity for full and fair  consideration of the search and seizure claim, Stone v. Powell eliminates the second two courses of action.  Clearly, therefore, a state convict who claims that he was subjected to an illegal search and seizure on or after July 6, 1976, the date Stone v. Powell was decided, may seek federal relief by way of a writ of certiorari, but not in a federal habeas corpus proceeding unless there was no opportunity in the state court for the search and seizure claim to be fully and fairly litigated.  But are state convicts who complain of an illegal search and seizure conducted before July 6, 1976 within the rule laid down in Stone v. Powell?  In order to answer this question it is necessary to determine whether the decision is to be retroactively applied.
    Although the majority opinion in Stone v. Powell does not address the question of whether the holding is to be limited to searches and seizures occurring after July 6, 1976, there are strong reasons for concluding that the decision will have retroactive effect.  First, in Estelle v. Cole, 429 U.S. 1012, 97 S.Ct. 635, 50 L.Ed.2d 621 (1976), decided on December 13, 1976, the Supreme Court vacated and remanded for reconsideration in light of Stone v. Powell an April 1976 decision which had granted habeas corpus relief to a state convict victimized by an illegal search and seizure.  Second, all the lower federal courts that have thus far explicitly considered the question have held Stone v. Powell to apply to searches and seizures conducted prior to the date of the Supreme Court’s decision.  See, e.g., Rigsbee v. Parkinson, 545 F.2d 56  (8th Cir. 1976); Bracco v. Reed, 540 F.2d 1019 (9th Cir. 1976); Chavez v. Rodriguez, 540 F.2d 500 (10th Cir. 1976); Denti v. Commissioner of Correctional Services, 421 F.Supp. 557 (S.D.N.Y. 1976).  Furthermore, a number of other lower federal courts, without explicitly considering the issue, have assumed that the decision is to have retroactive effect.  See, e.g., Roach v. Parratt, 541 F.2d 772 (8th Cir. 1976); Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1976); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976); Perry v. Vincent, 420 F.Supp. 1351 (E.D.N.Y. 1976); Roundtree v. Riddle, 417 F.Supp. 1274 (W.D. Va. 1976).

Litigation of Mapp claims by the states

Under Stone v. Powell the federal courts retain the power to entertain habeas corpus proceedings instituted by state convicts denied an opportunity for a full and fair consideration of their Fourth Amendment claims.  Unfortunately, however, the Supreme Court failed to satisfactorily explain the nature of this “opportunity” exception to the general rule barring search and seizure claims in § 2254(a) cases.  Instead of laying down guidelines for determining whether the state court afforded the petitioner an opportunity for full and fair consideration  of a Fourth Amendment, the Court simply cited to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).  Stone v. Powell, 428 U. S. at 495 n. 36, 96 S.Ct. at 3952 n. 36.  In Townsend it was held that a federal habeas court must afford an evidentiary hearing to a state convict claiming a denial of a federally protected right whenever (1) the merits of the factual dispute were not resolved in a state hearing; (2) the state factual determination is not fairly supported by the record; (3) the state court’s fact-finding procedure was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed by the state court; or (6) for any reason it appears that the state trier of fact did not afford the habeas corpus petitioner a full and fair hearing.  Nor did the Court in Stone v. Powell specify what levels, if any, of a state court system must participate, or be capable of participating, in the consideration of a Fourth Amendment claim in order for there to have been an opportunity for full and fair  consideration of the claim.  Twice the Court seemed to imply that state court may not have furnished such an opportunity if the Fourth Amendment claim raised in the state court proceeding was not reviewed at both the trial and appellate levels, but it made no formal ruling to this effect.

Three cases of lower federal court inquiry

Thus far there are only three reported decisions in which a lower federal court inquired whether there had been an opportunity for full and fair consideration of a federal habeas petitioner’s search and seizure claim.  In Denti v. Commissioner of Correctional Services, 421 F.Supp. 557 (S.D.N.Y. 1976), it was held that the habeas petitioner had not been denied such an opportunity even though the trial court, in violation of a state statute, failed to make findings of fact when it granted the petitioner’s suppression motion, with the result that an intermediate state appellate court made its own findings based on the transcript and then reversed the order of suppression.  In Pulver v. Cunningham, 419 F.Supp. 1221 (S.D.N.Y. 1976), the trial court conducted a suppression hearing which failed to develop the relevant facts.   However, the facts were disclosed during the trial, and subsequently a state appellate court, after examining the record, affirmed the petitioner’s conviction.  It was held that under these circumstances the state had afforded the petitioner the requisite opportunity for a full and fair consideration of the Fourth Amendment claim.

U.S. ex rel. Petillo v. State of New Jersey, 418 F.Supp. 686 (D.N.J. 1976), is the only § 2254(a) case holding that a state had failed to afford an opportunity for a full and fair consideration a state convict’s Mapp claim.  At trial in state court the federal habeas petitioner moved to suppress the evidence against him on the grounds that the affidavit supporting the issuance of the search warrant contained statements that were known to be false by the police seeking the warrant.  The motion was denied because under state law the validity of a search warrant could not be challenged as resting on a perjurious affidavit.  Under these circumstances the federal district court held that the petitioner was entitled to a hearing on the merits of his search and seizure claim.  [On appeal, however, the district court decision granting habeas relief was vacated.  U.S. ex rel. Petillo v. State of New Jersey, 562 F.2d 903 (3d Cir. 1977) (under circumstances, New Jersey rule precluding challenges to truthfulness of allegations in an affidavit for a search warrant did not operate to preclude state prisoner from fully and fairly litigating his claim that evidence obtained in an unconstitutional search was introduced at his trial; federal habeas corpus relief is not available with respect to a claimed violation of Fourth Amendment when state prisoners have been afforded an opportunity for full and fair consideration of their reliance upon exclusionary rule with respect to seized evidence by state courts at trial and on direct review).]
    In Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1976), the court held that the burden of pleading and proving that a state did not afford a full and fair consideration of a habeas corpus petitioner’s search and seizure claim is on the petitioner.

Other search and seizure claims

The Fourth Amendment prohibition of unreasonable search and seizure is not the only federal constitutional provision protecting state criminal defendants from conviction on the basis of evidence acquired by illegal search and seizure practices.  Quite apart from the Fourth Amendment, the due process clause of the Fourteenth Amendment prohibits the entry of state criminal convictions resting on evidence seized by the infliction of physical brutality to the person of the accused that is shocking to the conscience.  Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).  In addition, the right to counsel clause of the Sixth Amendment prohibits states from using seized evidence in some circumstances.  McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965); Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

Will Stone v. Powell be extended to preclude § 2254(a) petitions raising search and seizure claims not based on the Fourth Amendment?  It is probably too early to answer this question.  It seems fair to observe, however, that the logic underlying Stone v. Powell would appear to support extending the holding to all search and seizure claims, since, as in the case of Fourth Amendment violations, the probative value of evidence seized in violation of the Fourteenth or Sixth Amendments is unaffected by the methods of seizure.

Section 2255 proceedings

Another provision of the federal habeas corpus statute, 28 U.S.C. § 2255, authorizes federal courts to furnish postconviction relief to federal prisoners.  In Kaufman v. U.S., 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the Supreme Court held that a claim that illegally seized evidence was admitted at trial is cognizable in a § 2255 proceeding.  (Evidence seized in violation of the Fourth Amendment is inadmissible in a federal criminal trial under Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).)  Is Kaufman still good law in light of the decision in Stone v. Powell?  There are good reasons for believing that it is not, and that therefore search and seizure claims are no longer cognizable in § 2255 proceedings.  In the first place, Kaufman was premised on the view that search and seizure claims ought to be cognizable in § 2255 proceedings because they are cognizable in § 2254(a) proceedings.  Stone v. Powell, on the other hand, has eliminated the use of search and seizure claims in § 2254(a) proceedings except in the extremely unlikely case where the state has not afforded an opportunity for a full and fair consideration of such claims.  Moreover, Kaufman also assumed the necessity for excluding illegally seized evidence could never be outweighed by the need for using probative evidence of criminal guilt in order to determine factual guilt or innocence–a view repudiated in Stone v. Powell.

In Tisnado v. U.S., 547 F.2d 452 (9th Cir. 1976), the court held that in light of Stone v. Powell a federal prisoner cannot, in a § 2255 proceeding, attack the validity of his federal sentence on the ground that the judge who imposed it relied in part on a prior state court conviction which was invalid because it rested on the admission of evidence seized in violation of Mapp.


Stone v. Powell is obviously a significant decision from both the theoretical and practical points of view.  The case is important as a matter of theory because for the first time the highest court in the land has announced that, at least for purposes of federal habeas corpus relief, all federal constitutional rights do not stand on the same footing.  The Fourth Amendment right against unreasonable search and seizure, the denial of which generally does not reflect on the issue of factual guilt or innocence, is now beyond the protection of § 2254(a), except in the highly unusual situation where the state has not fairly considered a claimed denial of the right.  In theory the holding may indicate that other rights against unreasonable search and seizure (or indeed other rights unrelated to search and seizure) that deflect from accurate fact-finding may also in the future be placed beyond the scope of federal habeas corpus protection.  Stone v. Powell is also important as a practical matter because it narrows the availability of a federal forum for state convicts presenting Fourth Amendment claims.  From now on state prisoners with search and seizure claims will be able to seek federal review of their claims only in the U.S. Supreme Court, unless the state fails to afford an opportunity for a full and fair consideration of the claims.  Federal habeas corpus for state prisoners with Fourth Amendment claims will probably be granted only rarely.

Subsequent case law will help establish guidelines for determining what constitutes “an opportunity for a full and fair consideration” of a search and seizure claim and whether the “opportunity” rule applies to search and seizure claims raised in § 2255 proceedings instituted by federal prisoners.