*1 Virginia no col- Commissionhad Jenkins could embrace effect and lateral first proffering forum without
the Federal relationship. doing In so of the work making out a different one not Virginia.
entertainable judgments of Pettus and Jen-
Thus the on separate
kins rested bases. Jenkins under the law
could not recover State but Obviously, these
Pettus could. conclusions contradictory. mutually SALLIE, Appellant,
Danny L. CAROLINA, C. T. NORTH OF
STATE Prison, Jackson, North Caudill, Odom
Carolina, Appellee. 75-2042.
No. Appeals,
United States
Fourth Circuit. 5, 1978.
Argued June 28, 1978. Nov.
Decided *2 Richmond, (Co- Shelton,
Michael Va. S. Va., hen, Richmond, on Staples, Abeloff & brief), appellant. for Gen., Atty. Ra- Byers, Joan H. Associate Edmisten, Atty. Gen. leigh, (Rufus N. C. L. brief), C., C., appel- Raleigh, of N. N. for lee. HAYNSWORTH, Judge, Chief
Before CHAPMAN,* WINTER, Judge, Circuit Judge. District * Judge Carolina, Chapman, sitting F. District the District Robert United States for of South designation. seeking
WINTER,
station
medical assistance
Judge:
Circuit
re-
apparently
Lynda, who was
Pamela.
Sallie,
of second de-
convicted
Danny L.
store,
there
joined
turning from the
of his
validity
gree murder, attacks
aid
received no
got
into the car.
fourth, fifth and sixth
state conviction
station,
or at another
gas
at the
station
urges
He
grounds.
amendment
*3
Finally,
took
he
stopped.
where he also
mobile home was
of his
warrantless search
this time she
by
but
hospital,
Pamela to a
photo-
resultant
that the
unreasonable and
gathered was lifeless.
and
evidence
graphic
testimonial
trial should have
and later introduced at
m.,
p.
and 1:00
between noon
Sometime
He also contends
the
been excluded.
telephone call
park manager
the
received a
jury
improper
the
were
un-
instructions to
trailer. She walked
concerning the LeGros
684,
Wilbur, 421
Mullaney
der
v.
open,
standing
the door
over and found
Finally,
1881,
(1975).
S.Ct.
Subsequently,
I.
receiving information on
park
trailer
after
child at
his
arrival of dead
radio about the
July 17,
three-year-old
On
Pamela
with
man-
speaking
the
the
hospital. From
rupture
the simultaneous
LeGros died from
girl
ager,
learned that the dead
had
he
pathologist
liver. The
who
her heart and
was.
rup-
sister but that no one knew where she
performed
autopsy
the
indicated these
safety, the of-
produced by
were
blow
about the sister’s
tures
forceful
to Concerned
trailer,
the
al-
inspecting
abdomen. His examination revealed a
ficer
on
insisted
testimony (but
on the child’s abdomen
de-
though, according
semicircular bruise
to her
addition,
and,
on
officer),
manager
three lacerations
nied
told
head,
eighty-five
three
bitemarks and
huge
just
she
inside the trailer and had
had
one hundred bruises
scars
sign
seen
After a
the sister.
fruitless
body.
child’s
search,
take
photographer
he called a
pictures of the interior of the trailer be-
mother, Dorothy
Pamela lived with her
cause,
explained,
thought
he
he
as
later
LeGros,
sister,
eleven-year-old
Lyn-
and her
Depart-
photographs might be useful to
da,
park
Fayetteville,
at
trailer
North
ment of Social Services.
park manager
Carolina. The
rented lot 117
LeGros,
to Danny
Dorothy
Sallie and
who
day
taken that
photographs
represented
as Mr. and
themselves
Mrs.
at
trial
corroborate
admitted
Sallie’s
Danny LeGros. Sallie lived much of the
policeman’s
They
testimony.
disclosed
trailer, kept
belongings
personal
time at the
interior,
of the trailer’s
disarray and clutter
support
there and contributed to the
and,
an
specifically,
presence
more
family. He
at
quarters
also maintained
ironing
This
standing
iron
on the
board.
Bragg,
he
Fort
where was stationed.
significant
especially
last
because
detail
left
July
On
Sallie
the mobile
of Sal-
flatly
key
it
element
contradicted
a.
accompanied by
home around 8:00 m.
testimony suggest-
testimony;
lie’s
his
own
m.,
a.
he re-
Mrs. LeGros. Around 11:00
by the fall
ed
Pamela had been killed
thereafter, he
Shortly
turned alone.
sent
an
indi-
ironing
iron from the
board and
Lynda to a
from the trailer
store across
cated
Pamela to the
had rushed
park for
This
sandwich meat.
left Sallie
the iron on the
hospital
replacing
without
and Pamela in the
home.
mobile
neatly
By showing
sitting
the iron
board.
board,
photographs
top
The next
of the
anyone
time
saw either Pamela
gas
conclusively impeached
Sallie was when
drove
to a
evidence crucial
up
Sallie
III.
De-
theory
defense
of Pamela’s death.
objection to either
counsel raised no
fense
first
fourth
to Sallie’s
speak
We
testimony or the introduc-
policeman’s
outset,
At
we note
amendment claim.
con-
of the
Sallie was
photographs.
tion
by the
grounds
that neither of the
advanced
second-degree
murder.
victed
persuasive.
deny
is
district court to
relief
and tes
photographs
The assertion that
II.
is
timony
prejudicial
belied
impeachment
And
their
value.
courts,
appeals
before the state
standing to
is
contest
search established
trailer,
inspection
contended that the
rent,
regular
his
by his contributions
thereafter,
and the
had
trailer,
storing
his
occupation
violated
fourth
He also
amendment.
personal possessions
Creasy
there. See
argued
he had
been denied effective
(4
1970);
Leake,
Cir.
Walker
*4
F.2d
attorney’s
assistance of counsel
his
fail-
119,
(4
121
Peppersack,
v.
316 F.2d
Cir.
objec-
ure
raise these fourth amendment
1963).
relief,
tions. After the state courts refused
petitioned
corpus
for
habeas
re-
he
federal
Nevertheless,
do not
the
we
reach
lief.
district court denied relief on the
fourth amendment claim
merits
the
and testimo-
grounds that
in
Supreme
because we think the
Court’s
and, alternatively,
ny
prejudicial
Powell,
in
v.
428
tervening decision
Stone
object
standing
that
lacked
to the
Sallie
3037,
we would decline an court, conducting rejected district this claim without was raised cause it not Perceiving stan- hearing. and, evidentiary because there had importantly, more representation remedies. The to be whether not exhaustion of state dard been merit, of the trial how- make farce patently inadequate is so devoid of so as to claim justified (4 3 ever, Cunningham, we that we are 344 F.2d (citing that think Root v. by reject- proceedings difficulty, further simplifying 1965)), court had Cir. record, ing finding repre- now. it reviewing the satisfactory. sentation have court’s The claim from the trial arises the element charge jury decision, we court’s the district Since finding to a of second necessary malice the standard evaluat have reconsidered degree could be inferred from an murder by de adequacy representation ing the killing, act unless defend- of intentional Maryland, In Marzullo fense counsel. ant that he had acted in heat of proved 1977), (4 we discarded 561 F.2d Cir. passion, in which case verdict of sudden mockery standard declared farce ar- manslaughter proper. would be defense coun to be whether standard gues transgressed that this instruction range representation within sel’s Wilbur, Mullaney v. principles of attorneys in crim competence demanded of (1975), 95 S.Ct. L.Ed.2d require inal cases. This standard does prove held must be- State flawless, representation only *5 yond in- a reasonable doubt all elements materially affecting all defend decisions cluded within the definition of crime product of in representation ant’s charged. The with which defendant is ignorance. or judgment, neglect not formed flawed, Sallie, according was to instruction to the Marzullo standard Applying placed because it on him the burden of difficulty rejecting no we have malice. disproving existence of allegations concerning the examina We do think that Mullaney’s not witnesses; was not intend tion of Marzullo teachings concerning of allocation promote judicial second-guessing on ed to apply to the circumstances of case. questions strategy as the han of as basic The here a three-year- homicide victim was of The failure defense dling of witness. testimony old The at trial presented child. objection to use of any to counsel raise positive finding offered no basis for a that obtained from the search evidence provocation acted out defendant problem. We raises more serious trailer we passion, and think sudden heat practice that de would think it standard conclusively age that the victim’s tender investigate fense counsel the circumstances negated possibility finding. of such a objec possible any search and raise all to Sallie therefore was not entitled an in frivolous, tions, are to short of those which manslaughter. struction on the issue Ac from it. the admission of evidence obtained cordingly, prejudice he could suffer no mitigating an even instruction on erroneous said, Powell As we have Stone v. circumstances, gave for it him more than he collat precludes further fourth amendment was to entitled receive. say eral attacks. But we not read it to do corpus on habeas that issuance of a writ of V. if a grounds is barred sixth amendment object the ad attorney that he had fails to support In of his contention defense counsel, viola clear assistance mission of evidence obtained been denied effective Certainly it defense had failed tion of the fourth amendment. Sallie noted that counsel evidentiary record say that an object leading questions asked does attack, sister, made before Stone failed cross-examine a collateral victim’s had decided, be considered could not witness, object the Powell was and had failed to determining the reasonable- a court in introduction of evidence obtained manager It is true that the testified that ness of a search in order to assess the failing to competence entry of counsel in contest and the had the officer of her she told validity of the search. We therefore The that no one within. fact she found decide the sixth turn to that record and told, if he officer but even being denied we conclude that amendment claim. Since told, that search was think we still the search was not that record shows that did not know the officer reasonable. The unreasonable, we the claim that reject Sal- her reliabili- manager not know and he did upset for violation lie’s conviction should be rely ty. required He would not be right, and we see of his sixth amendment accuracy thoroughness her search or the evidentiary necessity for further hear- no report. of her ing. reasonable, Since the search who made officer counsel ineffective in the constitu was not specific that he did so because he had validity. failing tional to contest its sense in felony capital been advised had been testify post-convic Counsel did not committed in trailer and he wanted “to what hearing tion and so we do not know and see if other children were check validi investigate have done to left in the trailer alone themselves.” As “disarrangement why result of the he raised no ty of the search and deplorable conditions of the . into objection formal to it admission [trailer] pictures had with the intention But even if counsel evidence of its fruits. [he] turning Department them to the over to conclude did we are constrained nothing, there were in case Social Services prejudice thereby. no suffered manager, children involved.” The Mrs. AFFIRMED. Eckhart, she told him she testified that already trailer and had entered the found CHAPMAN, Judge, concurring: District present, one else but the officer testified he had no with her. such conversation I, II, III wholeheartedly I concur Parts IV, reached I concur in result effecting entry, officer *6 However, by I am in Part V. disturbed responding emergency to an situation. Arizona, Mincey unnecessary recently said in 437 of an As discussion and decision 385, 392, 2414, 57 question, 98 S.Ct. that creates U.S. Amendment Sixth (1978): 290 L.Ed.2d to v. Powell as large exception such a Stone endanger application to future in habeas Fourth Amendment does not bar its [T]he making police corpus officers from warrantless cases. they entries and searches when reason- observes, As the well we have opinion so ably person believe a within is in complete evidentiary in this mat- a record need of immediate aid . when ter, testimony upon prior including come police upon the scene a homi- All of this was done remand this court. they may prompt cide make a warrant- cir- these Powell. Under Stone v. if
less search of to see there are the area prefer decision cumstances I would victims is still or if a killer record is available holds that since the police may premises. . . . And reasonable, there is obviously the search so plain is in view seize evidence that decide the Sixth no need discuss or to legitimate their during course of question. Amendment emergency activities. have past For the decade Federal Courts Thus, concern we think that the officer’s increasing an ever inundated light in the for “other children” corpus petitions stream of habeas proper basis reported provided homicide petitions, flood prisoners. state This for him to enter the trailer and conduct frivolous, has which are majority vast plain justi- view doctrine the search. and de- judiciary federal overwhelmed the pre- arranging fied his at a cost layed the of the courts appearance of the interior. work serve 642 fees, and court cost
billions of dollars Supreme In Court Stone time. IN- MUTUAL FIRE re MERRIMACK precluding some relief v. Powell offered COMPANY, Petitioner. SURANCE collateral attacks Fourth Amendment No. 78-3036. opportuni- prisoner had the where the state litigation right full fair ty for Appeals, United States has present opinion his state trial. The Fifth Circuit. Stone, peti- sweeping aside since effect of that counsel simply allege tioners now Sept. 1978. raising in not incompetent 21, 1978. Rehearing On Dec. issue at state trial. seizure present When decision is read with Marzullo, a application
the retroactive prison-
new flood of state greater and even Every petitions forthcoming.
er will be ground has a new
unhappy now prisoner writer Every
attack his writ conviction. Fourth Cir- comprising
the five states paper begin ordering
cuit will
assault. since the Sixth unnecessary,
All of this is need not be decided or
Amendment issue at result proper
even to arrive discussed I that we present suggest case. appel rules of
follow three of the cardinal
late set forth in Ashwander v. review as
TVA, 288, 346, 347, 56 S.Ct. (1936): L.Ed. ‘anticipate
“2. will not The Court
question law in advance of constitutional it’, (citations of the necessity deciding
omitted). It is not the habit of court questions of a constitutional decide absolutely necessary
nature unless *7 (citations omitted).
decision of the case
“3. will not ‘formulate than
rule of law broader is constitutional which it
required precise facts to is omitted). (citations
to be applied’, pass upon
“4. will The Court although properly question
constitutional record, is
presented by if there also ground
present upon some other disposed case of.”
Let us Amendment issue leave the Sixth that re- another time and for a case
quires question to be the constitutional
faced and decided.