Brian L. Hussong v. Warden, Wisconsin State Reformatory

HUSSONG, L. Brian

Petitioner-Appellant,

WARDEN, STATE WISCONSIN

REFORMATORY,

Respondent-Appellee. No. 79-1999. Milwaukee, Wis., Stephen Glynn, for M. Appeals, States Court of United petitioner-appellant. Seventh Circuit. Dept, Wis. Magee-Heilprin, Pamela Argued Jan. 1980. Justice, Madison, Wis., respondent-ap- pellee. June Decided SWYGERT, CUMMINGS and

Before BAUER, Judges. Circuit SWYGERT, Judge. Petitioner-appellant, a Wisconsin state from a decision order prisoner, appeals dismissing petition for a writ U.S.C. § he was in section 2515 of Title custody in violation of Control and Safe III of the Omnibus Crime (“the of 1968 Streets Act statute”), The basis for Su- the district court’s dismissal decision in Stone preme Court’s (1976). We affirm the dismissal tion, on different but we rest our decision Assuming we must grounds. true, we hold allegations in the in violation petitioner’s incarceration wiretap stat- of the federal of section 2515 “complete required meet ute required of miscarriage of standard law violations nonconstitutional cognizable under the federal be in order to corpus statute. I County, 1971 the Brown In December Attorney obtained or- District Wisconsin wire com- interception der L. Hus- petitioner, Brian munications concern- gain information song, order Nine Neil LeFave. the homicide of Hussong was arrested later days charged degree concerning with first murder. Assert- that offense would be obtained (3) through interception, showing that evidence derived from the no obtained, illegally Hussong investigative procedures moved that other had been conceded, suppress reasonably the evidence. It is been tried and had failed or appeal, appeared unlikely that he or to be too purposes of this received to succeed tried, (4) opportunity litigate dangerous particularized fair his if no a full and showing establishing probable claim in the state court. When cause to be- his motions to lieve that additional communications would incriminating introduced communication evidence occur after the described against Hussong interception him at yet trial. was convict- had been obtained and degree ed of first murder and sentenced to automatically did not terminate after imprisonment. type life His conviction was af- first described communication of obtained, Supreme (5) firmed Wisconsin Court.1 was failure to minimize interception of communications not oth- Hussong petition filed a for a writ of subject interception.3 erwise corpus in the United District States for the Eastern District of judge petition Court Wisconsin. The district dismissed the Hussong’s The asserted that enacting custo- on the basis that dy was in violation of section 2515 of the federal statute had “not conferred a broader on review of claims of because he was illegal provided by convicted on the basis of surveillance than that obtained violation of section for Fourth Amendment Court 2518 of the 18 claims in [Stone following statutory (1976)]” U.S.C. 2518.2 The alleged: (1) violations were probable Hussong required no had received the full cause to believe that he Upon had committed the and fair court.4 murder, degree offense of first prob- probable issuance a certificate of cause, able cause to believe that communications ensued.

2. Petitioner also quires inter alia: provides: trol and Safe Streets Section tutional ed the United States Hussong been tried and have failed or be too particular pear offense will be obtained ception; approving interception of wire or oral com- an individual an ex munications mines on the basis of the facts submitted particular (c) Upon (b) (a) applicant to be normal there is there is 2518(l)(d), $ allegations parte dangerous; 2518(3) such unlikely communications State, offense 9f( order, application that— investigative procedures probable probable ... of the Omnibus Crime Con- are not before us. 62 Wis.2d Sj« Constitution. to succeed if tried and to Act, . . has committed . that his cause for belief that cause for belief that . if the Jfc through 18 U.S.C. § . judge may concerning reasonably ap- custody 2518(l)(d), authorizing $ 215 N.W.2d The such inter- ^[*] 2518(3) consti- violat- deter- enter have re- 4. In Stone v. zure omitted.) prisoner may obtained tion of a Fourth Amendment provided preme Court held that “where the State has inter alia: Section will occur communications not otherwise terception obtained, particular description contain a intercept ditional communications of the same such a tablishing probable cause to believe that ad- that the authorization for scribed Every order and extension thereof shall If the nature of the was introduced at automatically 2518(5), relief on the ^[*] way type provision an unconstitutional search or sei opportunity thereafter; under this as to minimize the ^[*] of communication has been first not be $ terminate when the de- that the authorization to granted shall be conducted in chapter ground his trial.” for full and fair investigation >(< interception 2518(5), provides federal habeas claim, that evidence interception jfc subject of facts es- (footnotes a state is such £ should litiga type Su federal habeas relief that was per-

II Kaufman.5 The Court re- mitted discussing the crucial differ- begin by We in Kaufman considered issue decided ence between Stone and held that after a defendant had (1976) and litigate ceived a full and fair Powell, supra, case at bar. In Stone courts, in the state his of a Court decided not the Amend- custody did violate Fourth exclusionary where- judicially-created explain ment. The was careful to Court exclusionary case an the instant involves as the of its deciding scope that it was own origin. congressional rule of scope exclusionary rule and not the of the exclusionary interpreted The rule Powell, federal habeas statute. Stone Ohio, Mapp created in 367 U.S. was Stone n.37, at 494 96 S.Ct. at 3052 n.37. U.S. 6 L.Ed.2d 1081 presents The instant case a different imple- Supreme that when the Court held problem here seeks habe- of the Fourth Amendment re- mentation alleged violation of corpus as relief for an at trial of evidence quired the exclusion exclusionary congressional that is an rule of in an unconstitutional search or obtained judicial origin. The rather than In seizure. Kaufman statute, 2515, provides wiretap 18 U.S.C. 22 L.Ed.2d 227 wiretaps from made evidence derived (1969), exclusionary was Mapp the rule held wiretap in violation of the statute shall not cognizable corpus in a federal habeas any “be received in evidence trial ..”6 prisoner. brought by The tion Although scope judicially-created the of the prior its had Court noted decisions exclusionary re- rule was determined and already established that habeas availa- Supreme determined Court on the they ble to state had considerations, changing policy basis of been on the basis of evidence convicted scope exclusionary rule contained in of of the obtained in violation Fourth Amend- interpreted by must be statute ment. Kaufman v. United to of according principles the courts years at 1073. Then seven later, perceive As we statutory construction.7 supra, Su- case, issue in this if a violation of exclu- preme itself as the availa- Court reversed to rule in statute is not bility prisoners alleging sionary for Stone, habeas, In it must be for one or Fourth Amendment violations. First, petitioned language two had for the both two reasons. 5. The the habeas law clear Noia, Fay rejected argu- at least since the Court (1963), provided suppression ment under sec- state crimi- “broad collateral re-examination of tion was restricted nal convictions constitutional violations [where exclusionary judicially-created rule: alleged.]” Stone v. judicially issue not turn The does on the 477, 96 S.Ct. at 3044. fashioned rule aimed deter- rights, ring violations Fourth Amendment 2515, provides: 18 U.S.C. § provisions upon the of Title III. but any Whenever wire or oral communication part intercepted, has been of the contents such communication no evidence de- deciding months Six after may be rived therefrom received in evidence again supra, Supreme Court acknowl- trial, any hearing, or other in or edged: “The of the court, any jury, department, grand before of- opposed statutory, these ficer, legislative agency, regulatory body, constitutional, violations, turns on committee, authority or other of the United provisions of Title III rather than the State, political or a subdivision judicially fasioned rule . if the of that information thereof disclosure Donovan, United States v. chapter. would be in violation of n.22, n.22, recognized The Court has dis- statutory tinction between ex- Giordano, clusionary rules. In United States v. Act, “gener- may indicate lation of the was not intended ally press 2515 were not that violations of section beyond present search and seizure law. role reviewable on federal habeas intended to be Walder v. United would be See (in which case our decision (1954).” S.Rep. of the exclusion- interpretation on an based reprinted in Cong., No. 90th 2d statute). Second, Sess. ary rule Cong. & Admin.News U.S.Code the federal habeas States, supra, 2185. Walder v. United all contemplate relief for which does illegally held that Court law, nonconstitutional violations evidence could be used at trial obtained for violations of sec- may where challenge credibility a defendant’s (in wiretap statute tion 2515 of the federal “affirmatively that defendant would be based on case our decision perjurious testimony in reliance sort[ed] federal habeas stat- interpretation disability challenge on the Government’s ute). States, Walder v. United credibility.” his other The district court here and two 65, (footnote 74 at 356 S.Ct. statutory courts have construed the district omitted). scope the That case bears on 2515, to be identi- exclusionary rule at trial and is not the scope judicially-created cal in with the ex- review relevant to the issue of collateral Powell, supra. v. Stone clusionary rule after corpus. federal habeas (S.D.N.Y. Fogg, Pobliner v. F.Supp. 438 890 Congress Even if we assume that intend- West, 1977); Zagarino v. F.Supp. 422 812 incorporate “present ed to search and sei- (E.D.N.Y.1976).8 review of Because habeas suppression generally, zure law” as Stone, precluded in rule of review on federal cluding availability statutory habeas review of the rule was agree with the corpus, we cannot similarly held unavailable. “[sjince Congress has district agree We do not incorporated Fourth Amend- essentially section 2515 can be construed conform III, Title it follows ment standards into examined, Stone. holding We have policies underlying apply court, legislative as did the district his with as much force to claims for exclusion tory of Title III of Omnibus Crime brought under of evidence [the 1968, Act of 18 Control and Safe Streets 1968, wiretap . .”9 statute] For the reasons that U.S.C. 2510-2520. §§ of habeas relief for law on the follow, we do not find that intend Amend- prisoners who Fourth preclude ed to ment violations favored statutory exclusionary for violations of the year tion. Less than a after the rule. enacted, Supreme Court statute was Report It states decided Kaufman v. United is true that Senate 394 2515, 1068, requir- that section 18 U.S.C. U.S. (1969)

ing suppression in vio- that federal habeas relief under 28 of evidence obtained Fogg, supra, appears 8. The in Pobliner v. of habeas review on a claim of admission court reasoning Zagarino illegal wiretap to have relied on the or use of . de- West, supra. pends on the current view of the usefulness of extending rule to collateral (empha- eight years review fourth amendment claims.” 9. Since Stone was decided after enacted, only added) federal assume that term law was we can sis judge interpreted the search and seizure law” in the district That the drafters of the federal stat- “present carefully then-present suppres- ute researched Report meaning the law at the time Senate analysis and sion law is clear from the detailed interpreted than at the the statute is time rather Report. abundant citations contained in the was enacted. It is clear that the statute “present persuaded phrase We are that the West, F.Supp. judge Zagarino 422 law” refers to the law at the search seizure (E.D.N.Y.1976) interpreted legisla- 816 so Report time the Senate was written. he tive stated: pris- paragraph (b), 2255 was available to federal dis- below, oners violations of Fourth Amend- by waiting cussed until trial. ment search and seizure law. As to (Giacona F.[2d] availability of habeas for state (5th), denied, certiorari 2254, the under 28 U.S.C. Court stated: (1958).) S.Ct. 113 L.Ed.2d [3 104] Our decisions leave no doubt S.Rep. Cong., No. 90th 2d Sess. remedy extends to state federal habeas printed Cong. & 1968 U.S.Code Admin. alleging that unconstitutionally News against obtained evidence was admitted In Giacona v. United 257 F.2d 450 See, g. them at trial. e. Mancusi v. De- (5th Cir.), cert. Forte, 392 U.S. 364 [88 cited in the Re L.Ed.2d L.Ed.2d after the en- 1154] [issued port, argued the Government de statute]; actment of the federal illegal search fendant had waived LaVallee, Carafus by waiting until trial to move to (1968); Ward- time, 41(e) the evidence. At that Rule Hayden, en v. the Federal Rules of Criminal Procedure (1967); Henry see also provided: Mississippi, 379 [85 13 L.Ed.2d 408] The motion shall be made before trial unless therefor did Kaufman v. United not exist or the was not aware defendant at 1073. motion, grounds of the for the but If did intend the statute court in may its discretion entertain the existing to reflect then search and seizure hearing, (emphasis motion at the trial or law on the to habeas added.) prisoners, likely state it is more than not that violations of the statute were intended The Fifth first commented that mo- cognizable. to be always suppression tions for are better interrupt made before not trial so as

Moreover, believe, we do not did jury’s trial and divert attention to a judge, 2518(10)(a) district that section of matter, collateral that the of and enactment 2518(10)(a), 1404, permitting the Govern- requiring suppression a motion to be made appeal granting ment order a possible, from an before trial if demonstrates a con- trial, motion to made before gressional judgment that requiring sup- only early proceeding importance rule is useful creased pression on As we motions to be made before trial.11 legis- not habeas.10 read the 2518(10)(a), lative Then the it would hold section Con- court stated gress entirely improper had an different rationale for motion was requiring pre-trial suppress: 41(e) a motion to which language but for the in Rule to enter- gave the trial “discretion”

The motion must be made before the language tain the motion at trial. The trial, hearing, proceeding or unless there 2518(10)(a) of the opportunity was no to make motion 41(e) language tracks the of former Rule person was not aware of the or motion, intentionally but omits the discre- grounds example, of the when exception tion the court given paragraph no notice was troubled congres- discussed above. Care must be exercised Giacona. We conclude that having sional mo- purpose requiring to avoid a defendant defeat 2518(10)(a), 2518(10)(a), grounds 18 U.S.C. son was not aware of the provides inter alia: motion. trial, Such motion shall be made before the could thwart 11. Otherwise a defendant hearing, there was no or unless by waiting until Government’s per- to make such motion or the jeopardy attached. jurisdic- It is an error which is neither is related to before trial to be made tions appeal and not to right of It not a fun- the Government's nor constitutional. is tional the exclu- congressional judgment a inherently results defect damental pro- early only is sionary rule useful justice, nor complete miscarriage ain not ceeding and on habeas. with the rudi- inconsistent an omission years v. Powell four after Stone Because procedure. It of fair mentary demands denying routinely habeas judges federal “exceptional circum- present claims, it review to Fourth Amendment for the stances where the need easy interpret the nonconstitu- would be by writ habeas is afforded statutory exclusionary rule as man- tional apparent.” are, dating the same result. The facts how- (citations ever, rule in the wire- that the omitted).12 legislature, tap statute created courts, and at a time when the applied again Da- The Hill standard Supreme Court was States, 417 vis bring petitions habeas search (1974), when the Court violations. In these circum- and seizure conviction for an defendant’s set aside the cannot find that habeas review stances we because of longer was no criminal act which statutory exclusionary precluded change a law: rule. be room for doubt that such There can “inherently a results in a circumstance Ill miscarriage Hussong’s pe- We affirm dismissal exceptional circumstances” “present[s] ground tition on the that the federal justify collateral does remedy for nonconstitutional 346-47, at 2305. U.S. at its face the habeas statute offers claim. On Supreme Court held that Only year last in custo- relief to all state who are 11 was not violation of Rule or dy “in violation of the Constitution laws it was not (emphasis treaties of the United States” jurisdictional or and could constitutional added), been in- but the statute has never “ ‘complete miscarriage of result in a every terpreted encompass nonconstitu- justice’ a ‘inconsistent with or in claim. In Hill v. United tional proce- rudimentary demands fair 424, 468, 82 7 L.Ed.2d 368 U.S. S.Ct. ” Timreck, 441 dure.’ United States (1962), Court defined the 417 2087, 2085, 99 S.Ct. scope of habeas relief for nonconstitutional (1979) (citations omitted).13 rejected a law when it violations of federal a violation Rule bar, Turning at we note to the case 32(a) of of Criminal Pro- the Federal Rules the federal stat- that a violation of cedure: imagined 32(a) gives in situations can be which 12. Rule defendants sentencing. prisoner has a federal nonconstitutional make a statement before problem virtually unlit- has been thus] [and In Hill United 368 U.S. igated years.” “Developments-Feder- in recent (1962), 7 at issue L.Ed.2d 417 Corpus” al Habeas 83 Harv.L.Rev. 1070 28 § was section (1970). prisoners. can be no claims “There grounds § doubt that the for relief under 2255 Timreck, petitioners had In and in Hill equivalent encompassed to those appeal. on direct not exhausted their remedies 2255 intended to mirror 2254 however, Davis, petitioner appealed In operative effect.” Davis unsuccessfully. ap- The same standards 41 plied Stone v. in all three cases. See also concerning L.Ed.2d 109 The law n.10, at 428 U.S. at 477 scope of habeas for federal nonconstitutional n.10, applies suggesting the Hill standard developed to section has with reference claims generally federal claims. to nonconstitutional “few 2255 rather than section 2254 because ” jurisdic- ute is neither constitutional nor innocence of the defendant.’ United tional. Because it has been conceded for Fike, States ex rel. Henne v. 563 F.2d purposes of this that Hussong re- (7th 1977), Cir. cert. hearing ceived full and fair in the state (1978), claim, courts on his suppression we do not quoting at Hussong’s custody find that is ‘inconsist- Wiretap evidence, S.Ct. at 3050. particu rudimentary ent with the demands fair lar, generally is more accurate even than ” procedure.’ Timreck, United States v. 441 whatever circumstantial is (citations S.Ct. at 2087 omit- presented Thus, at trial. we have no reason ted). If Hussong’s petition states a viola- to think that Hussong was~not convicted on tion of nonconstitutional federal law which the basis probative evidence, and reliable habeas, on it must be because even if that wrongfully evidence was ad Hussong’s custody is “a miscar- short, mitted. In nothing there is riage warranting exceptional re- record to Hussong indicate that is not Timreck, lief. United supra. States We guilty of the crime he was con conclude that even if Hussong was convict- victed. ed on the basis of evidence admitted This distinguishable case is from Davis v. wiretap statute, violation of the his custody United does not constitute “a complete miscarriage where justice.” Court held that the nonconstitutional issue agree petitioner We with the viola- Davis, raised was cognizable on habeas. alleges tions he are not mere “formal re- case, unlike the instant al- quirements” as the Hili Court described the leged that his punishment conviction and (368 violations there U.S. at 82 S.Ct. at were for an act that the law did not make 470), or violation[s],” phrase “technical That, Court, criminal. “ said the would be used to alleged describe the errors Tim- ” ‘a complete miscarriage justice.’ (441 reck 2087). U.S. at U.S. at Although S.Ct. at 2305. Hussong has asserted inter alia that there Hussong alleges instant case that his probable cause to believe that he violated, statutory rights were the issues he committed the probable murder and no asks us to bearing redetermine have “no cause to believe that communications con- justice the basic of his incarceration.” cerning the offense would be obtained n.31, 428 U.S. at 492 through wiretap. argues He further at 3051 n.31. We therefore conclude conviction, that his based on evidence that Hussong, having received a full and obtained from wiretap, was the “direct courts, fair in the state cannot raise consequence of the violation.” his section 2515 claim on federal habeas Although Hussong has a substan corpus. law, tial violation of federal the fact is that course, Of if Hussong’s allegations are he was qualitative convicted on the basis correct, the evidence should have sup- been ly unimpaired though evidence —even it pressed at trial. But this case is not before may have been procedur tainted because of us on a direct al basis. The issue here irregularities. Section the statuto ry is whether the violation resulted deters violations of the wiretap statute, “a miscarriage justify- but like its judicially-creat counterpart, ed it also “deflects the habeas review. We think not. truth- finding process guilty.” and often frees the The district court’s dismissal of the accordingly tion is affirmed. 3050. This court has noted the Court’s observation that evidence obtained BAUER, Judge, concurring. in violation of search and seizure law ‘is typically proba reliable and often the most In the case at bar we hold that the feder- tive information bearing guilt on the al habeas petitioner’s in violation is incarcerated

that he view, unnecessary to it is therefore my v. Pow- applicability of Stone

determine the

ell, L.Ed.2d (1976), to habeas review under the fed- illegal surveillance

claims of Accordingly, I concur statute.

eral affirming judgment the Court ground that on the

dismissal un- petitioner’s claim not solely for the reasons ex-

der Section opinion. III

pressed Part America, STATES

UNITED

Plaintiff-Appellee, AVILES, Defendant-Appellant.

Steven

No. 79-2114. Appeals, Court of

United States Circuit.

Seventh Feb.

Argued 10, 1980.

Decided June 6, 1980.

Rehearing Aug. Denied

Case Details

Case Name: Brian L. Hussong v. Warden, Wisconsin State Reformatory

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 6, 1980

Citation: 623 F.2d 1185

Docket Number: 79-1999

Court Abbreviation: 7th Cir.