James R. Woolery v. A.J. Arave, Warden, Idaho Maximum Security Institution

8 F.3d 1325 James R. WOOLERY, Plaintiff-Appellee, v. A.J. ARAVE, Warden, Idaho Maximum Security Institution, Defendant-Appellant. No. 91-36029. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 1, 1993. Decided Oct. 26, 1993. Gar Hackney, Lynn, Scott, Hackney & Jackson, Boise, ID, for plaintiff-appellee. Myrna A.I. Stahman, Asst. Atty. Gen., Boise, ID, for defendant-appellant. Appeal from the United States District Court for the District of Idaho. Before: WRIGHT, CANBY, and REINHARDT, Circuit Judges. CANBY, Circuit Judge: 1 Idaho appeals the district court's grant of James Woolery's petition for a writ of habeas corpus. Woolery's petition alleged that he was entitled to relief because evidence of a blood alcohol test introduced at his trial in state court was obtained in violation of his Fourth Amendment rights. In its response to Woolery's petition in district court, the State of Idaho neglected to assert that the claim was barred by the rule of Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). The magistrate judge and the district court consequently reached the merits of Woolery's Fourth Amendment claim. On appeal from the…

Idaho appeals the district court’s grant of James Woolery’s petition for a writ of habeas corpus. Woolery’s petition alleged that he was entitled to relief because evidence of a blood alcohol test introduced at his trial in state court was obtained in violation of his Fourth Amendment rights. In its response to Woolery’s petition in district court, the State of Idaho neglected to assert that the claim was barred by the rule of Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). The magistrate judge and the district court consequently reached the merits of Woolery’s Fourth Amendment claim. On appeal from the district court’s grant of Woolery’s petition, Idaho argues that it was not required to raise the Stone rule as an affirmative defense, and that, in light of Stone , Woolery’s petition should be denied.

The question before us is whether, absent a showing that the state denied a full and fair opportunity to litigate the Fourth Amendment claim, the rule of Stone v. Powell precludes the federal court from enforcing the exclusionary rule through the writ of habeas corpus even though the state has failed to raise the Stone issue. We conclude that Stone has that…

dissenting:

I.

The Great Writ of habeas corpus is not a very popular instrument these days. Surprisingly, it is the federal judiciary which appears to find the use of the writ increasingly distasteful. A habeas corpus petitioner must cross a field filled with procedural landmines before the merits of his claims may be heard in federal court: exhaustion of remedies, procedural default, abuse of the writ, etc. Often he must do so without the help of a lawyer because there is no right to counsel on collateral attack, even though fundamental constitutional rights are ordinarily at stake. The various doctrinal obstacles provide abundant opportunities for state officials to foreclose any decision on the merits of the habe-as application simply by resorting to proce *1329 dural arguments. The states’ attorneys handling habeas cases are presumably well-trained and skilled litigators who possess, or at the very least ought to be charged with, detailed knowledge of the governing law. They usually have all the advantages on their side when they litigate against a habeas petitioner. It is difficult for me to understand why, under these circumstances, when states’ attorneys fail to raise the…