Mann v. Smith

488 F.2d 245

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 1973
• Docket: No. 71-1932
• Status: Published

Opinions

WALLACE, Circuit Judge:

The State of California charged Mann with possessing marijuana and maintaining a place for use of narcotics (Cal.Health- & Safety Code §§ 11530, 11557). He pleaded not guilty and moved to suppress the marijuana seized at his home, charging violation of his Fourth Amendment rights.

His motion was denied after an evidentiary hearing in the state trial court. Mann then sought a writ of mandate directing the trial court to suppress the challenged evidence. This was denied by the Court of Appeal and then by the Supreme Court of California. Mann v. Superior Court, 3 Cal.3d 1, 472 P.2d 468, 88 Cal.Rptr. 380 (1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971).

Mann then pleaded guilty to the possession of marijuana count. The state’s motion to dismiss the remaining count was granted. One month later, Mann petitioned the United States District Court for a writ of habeas corpus. The denial of that petition is the subject of this appeal. We affirm.

Mann again claims a violation of his Fourth Amendment rights. But, having pleaded guilty, he has lost his right to raise this challenge. In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the Court stated:

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

The voluntariness and intelligent character of Mann’s plea are not here questioned. No other issue remains.

The dissent suggests the rule should be different where there is a state procedure, such as in California¹ and New York,² which allows a defendant to appeal the denial of his .motion to suppress even after a conviction predicated upon a plea of guilty. An analogous question was specifically left open in McMann v. Richardson, 397 U.S. 759, 770 n.13, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Our brothers . of the Second Circuit have made such an exception.³ However, their decision predated Tollett which made no mention of any exceptions.

While states may institute various internal procedural rules for testing questions on state appeal, we believe the wise course is to have a uniform rule applicable to all states when federal habeas corpus is requested. While this question was not specifically presented, Tollett states a rule which appears to cover all federal habeas corpus petitioners. We hold that, subsequent to a plea of guilty, there can be no federal collateral attack based upon an alleged violation of constitutional rights occurring prior to the guilty plea.

If, in fact, Mann did rely on the erroneous advice of his attorney and believed that he could still raise his constitutional claims subsequent to the guilty plea, he should raise that question by attacking the voluntariness and intelligent character of his plea. Tollett, supra, 411 U.S. at 267, 93 S.Ct. 1602.

Affirmed.

1 . Cal.Penal Code § 1538.5(m) (West 1970). It is questionable whether Mann was availing himself of this procedure. He did not plead guilty -with the expectation of appealing to the state court. Rather, he pleaded not guilty and petitioned for a writ of mandate based upon the denial of his motion to suppress. It was denied by the California appellate courts and the United States Supreme Court denied certiorari. Then, he pleaded guilty.

Apparently a plea bargain was made in which Mann entered his plea in exchange for the dismissal of one count of the two-count indictment. This would be more consistent with a relinquishment of his Fourth Amendment claims than an attempt to preserve them. See Tollett, supra, 411 U.S. at 267, 93 S.Ct. 1602.

2 . N.Y.Code Crim.Proc. § 813-c (Supp. 1969).

3 . United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967) ; United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir.), cert. denied, 391 U.S. 917, 88 S.Ct. 1812, 20 L.Ed.2d 658 (1968). We have heretofore entertained a federal habeas corpus petition subsequent to a plea of guilty in a California state court. Houser v. Geary, 465 F.2d 193 (9th Cir. 1972), cert. denied, 409 U.S. 1113, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973). However, we did not discuss the point at issue here and the case was decided prior to the direction of the Court in Tollett.