Leroy Satchell v. Harold J. Cardwell, Former Warden, Arizona State Prison

653 F.2d 408 Leroy SATCHELL, Petitioner, v. Harold J. CARDWELL, Former Warden, Arizona State Prison, Respondent. No. 79-2622. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 9, 1980. Decided Aug. 10, 1981. S. Jeffrey Minker, Tucson, Ariz., for petitioner. Jessica Gifford, Asst. Atty. Gen., Phoenix, Ariz., for respondent. 1 Appeal from the United States District Court for the District of Arizona. 2 Before BROWNING, Chief Judge, KENNEDY, Circuit Judge, and HOFFMAN * , Senior District Judge. WALTER E. HOFFMAN, District Judge: 3 Petitioner appeals the denial of his habeas corpus petition by the United States District Court for the District of Arizona. He contends that his trial attorney's failure to make a motion to suppress certain evidence, allegedly obtained in violation of his Fourth Amendment rights, abrogated his Sixth Amendment right to effective assistance of counsel. 1 Without deciding but assuming, arguendo, that Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), does not preclude review of an ineffective counsel claim grounded in failure to make a possible Fourth Amendment argument, we find that Satchell's Sixth Amendment…

Petitioner appeals the denial of his habeas corpus petition by the United States District Court for the District of Arizona. He contends that his trial attorney’s failure to make a motion to suppress certain evidence, allegedly obtained in violation of his Fourth Amendment rights, abrogated his Sixth Amendment right to effective assistance of counsel. 1 2Without deciding but assuming, arguendo, that Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), does not preclude review of an ineffective counsel claim grounded in failure to make a possible Fourth Amendment argument, we find that Satchell’s Sixth Amendment rights were not violated and thus uphold the lower court’s denial of his petition.

Satchell was convicted in an Arizona state court, after trial to a jury, of kidnapping, rape, aggravated assault, and assault with a deadly weapon, to-wit, a knife. The victim, a fifty-year-old Indian woman, testified that Satchell forced her into his pickup truck as she left a Phoenix bar in a drunken state and drove her to his trailer, where he repeatedly raped, stabbed, and beat her between May 2 and 5, 1972. RT at 171-216. When a neighbor of Satchell’s stopped by, she…

concurring:

This circuit has not yet ruled whether Stone v. Powell bars our consideration of fourth amendment claims when cast as an argument respecting competency of counsel. Even if we are permitted to circumvent Stone v. Powell in this way, we should be cautious about turning sixth amendment cases into fourth amendment ones unless there is an absolute necessity to do so. Based on the trial court’s observation of the trial counsel’s skill and the fact that the lawyer studied the fourth amendment point and researched it carefully, I would determine he was competent without further discussion of the fourth amendment issues.

Since the court’s opinion treats those issues at some length, it is appropriate to state my full agreement with the apparent holding that the officer’s opening of the screen door was reasonable and necessary under the circumstances and that the evidence so disclosed was not barred by the exclusionary rule. If, however, the iron logic of the exclusionary rule were to apply to the good faith and sensible actions the officer took here and thus make the evidence inadmissible, I would be hard pressed to say that its admission was harmless error. With these…