Franklin Edward Davis v. Frank C. Blackburn, Warden, Louisiana State Penitentiary

803 F.2d 1371, 1986 U.S. App. LEXIS 36882

Opinions

ON PETITION FOR PANEL REHEARING

PER CURIAM:

In his petition for panel rehearing, Davis urges that this court is foreclosed from sua sponte applying the principle of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), so as to bar relitigation of his fourth amendment claim in his federal habeas corpus action because the state did not assert this principle in the district court. We disagree.

In Stone the Court stated “that where the State has provided an opportunity for a 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.” 428 U.S. at 494, 96 S.Ct. at 3052. This preclusion on federal courts to grant habeas relief based on a fourth amendment violation acts as a bar to such relief “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.” 428 U.S. at 494 n. 37, 96 S.Ct. at 3052 n. 37. We have interpreted this language to place the burden on a habeas petitioner to plead and prove the denial of a full and fair hearing in state court.

In Caver v. State of Alabama, 537 F.2d 1333 (5th Cir.1976), we recognized that the holding in Stone, coming as it did between the district court’s ruling on the petitioner’s fourth amendment claim and his appeal, required a remand so that the petitioner could be given an opportunity to address the requirements of Stone. However, in Caver the court went on to state:

But in future application of Stone v. Powell, supra, no such remand will be required. Rather the burden will be on a petitioner to plead and prove at the federal trial level a want of opportunity fairly and fully to litigate any fourth amendment claim in state courts.

537 F.2d at 1336 n. 2 (emphasis added). We recognized, although in dicta, a short

time later in O’Berry v. Wainwright, 546 F.2d 1204 (5th Cir.1977), the pervasive bar of the requirements of Stone to federal court consideration of a fourth amendment claim by a state prisoner in a federal habeas setting. The court in O’Berry, although recognizing that Stone did not cast its requirements in a jurisdictional mold, nevertheless equated the lack of federal court power to consider a fourth amendment claim when Stone requirements have not been met with the pragmatic effect of depriving a federal court of jurisdiction over such a claim. Id. at 1211-12.

Despite O ’Berry ’ s dicta, we acknowledge, as the Supreme Court has done recently in Kimmelman v. Morrison, --- U.S. ---, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), that the holding in Stone is not predicated on jurisdictional grounds. Unquestionably, at all times we have the jurisdiction to consider Davis’ fourth amendment claim. The prudential limitations imposed by Stone, however, are equally important in determining whether or not we will exercise our jurisdiction. The Supreme Court has mentioned this explicitly in the standing area. See, e.g., Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975) (recognizing that standing involves both constitutional limitations on jurisdiction and prudential limitations on its exercise).

As in the standing area, the limitations imposed upon us by Stone reflect important policy considerations such as comity and interests in finality. Basing its decision on prudential considerations, the Supreme Court has invoked the standing doctrine sua sponte if necessary to protect these policy concerns. See, e.g., Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) (dismissing an appeal on standing grounds where physician alleged intrusion on constitutional rights of others); Warth, 422 U.S. at 499-501 & n. 12, 95 S.Ct. at 2205-06 & n. 12 (recognizing that third-party standing rules are “prudential rules”). Similarly, we are obliged to apply Stone as a prudential limitation on the exercise of our jurisdiction here, even if it must be raised sua sponte.1

Our rejection of Davis’ fourth amendment claim due to his failure to meet the requirements of Stone gives us no reason to believe that an injustice has resulted by reason of our action. Davis cannot claim that he has not had his claim ruled on because, as our panel opinion made clear, Davis had a full and fair hearing on his claim in the state court. Where the record clearly shows that a petitioner had a full and fair hearing in state court, we hold that a federal court is not foreclosed from sua sponte applying the principle of Stone.

Since this standard is satisfied in Davis’ case, his petition for panel rehearing is DENIED.

1

. The dissent argues that our analogy to standing is inapposite because lack of standing raises a constitutional defect whereas Stone involves "only prudential considerations. We disagree. As we have demonstrated, the Supreme Court has found that prudential considerations can be important enough to preclude a federal court from exercising its jurisdiction. In cases such as Tileston v. Ullman it was not a “constitutional defect” — to use the words of the dissent — that precluded the Court from hearing the. case; indeed, the case fell within the limits of article III. Instead, the Court found prudential limitations on the exercise of its article III jurisdiction to be equally important as constitutional limitations. Thus, we disagree with the implied position of the dissent that our ability to recognize sua sponte limitations on the exercise of our jurisdiction depends on whether "constitutional defects” as opposed to prudential considerations are involved.

1

. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 840 n. 13 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir.1973), aff’d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).