The appellant, Kurt Stevenson (Petitioner), is appealing from the denial, without an evidentiary hearing, of his petition for habeas corpus.
In the early hours of Marсh 8, 1970, Detective Donald Schnuck of the Milwaukee Police Department obtained a search warrant for the home and premises of Kurt Stevenson. The warrant wаs issued on the basis of Schnuck’s testimony that an unidentified, but reliable, 1 informant had purchased narcotics from Stevenson at his home in the early evening hours of March 7. The transaction had been a “controlled buy”; that is, Detective Schnuck had searched the informant before and after he entered Stevenson’s premises. When the informant entered, he had $13 and no heroin; when he came out he had $3 and a tin foil packet containing a white powder which a field test indicated to be heroin.
Thе search warrant issued, and was executed the same morning. Stevenson was. found in the possession of heroin and was arrested on that charge. While he was imprisonеd on the possession charge, an information was filed against him for a sale of heroin which occurred on February 12, 1970.
The petitioner was tried on the sale charge, before a jury on November 4 and 5, 1970. He was found guilty and sentenced to seven years’ imprisonment. Among the other evidence which was presented to the jury was the in-сourt identification of the petitioner by the undercover agent who had made the buy on February 12.
After the petitioner had been sentenced on the sale chаrge, he withdrew his plea of not guilty on the possession charge which stemmed from the search of March 8. He substituted a plea of guilty and on the recommendation of the prosecutor received a sentence of five years to run concurrently with the seven year sentence on the sale charge.
Petitioner is attacking both his convictions. He contends that the March 8 search warrant was obtained on the basis of false testimony in that the so-called “reliable informant” was in fact *63 one Robert Weber, who had been known to Detective Schnuck for only one week and had never previously supplied the detective with any information, reliable or otherwise. 2 Because the warrant was invalid, he contends, the search was illegal and all evidence stemming from the search should have been suppressed. Thus, his jury conviction on the sale charge would have been invalid because his physical person was obtained by the police as a result of the searсh, and his physical person was used as evidence on the sale charge since the undercover agent pointed him out as the person from whom he had purchased the heroin. The possession charge (disregarding for the moment petitioner’s guilty plea) of course rested entirely on the search, since it was based оn petitioner’s having been found in possession of heroin when the warrant was executed. Petitioner therefore contends that he is entitled to an evidentiary heаring on the question whether the testimony given by Detective Schnuck was in fact false, thus invalidating the warrant, the search, and the resulting convictions.
I.
We agree with the District Court thаt the petitioner’s physical presence was not suppressible at his trial on the sale charge so as to invalidate the conviction. It is well settled that the illеgality of an arrest does not in itself void later proceedings.
Frisbie v. Collins,
The situation is quite different from that in
Davis v. Mississippi,
II.
We also agree with thе District Court that plaintiff may not attack his possession conviction on the grounds that his motion to suppress was wrongfully denied, because his conviction was based on his рlea of guilty.
Tollett v. Henderson,
III.
Plaintiff also contends that his рlea of guilty to the charge of possession was not voluntarily made, since it (1) was the result of a “negotiated plea,” and (2) was made in ignorance of the possibility that the original search warrant had been issued based on false testimony. The District Court refused to consider this contention, holding that the petitioner had not exhaustеd his state remedies on the issue. We disagree. Without here detailing all the attempts which the petitioner, acting
pro se
has made to present his claims to the Wisconsin courts, we note that the substance of petitioner’s claim has been made to the state courts in that the claim that the search warrant was based on false testimony was made to them. That claim is also the essence of petitioner’s claim that his guilty plea was involuntary. He does not claim that all guilty pleas resulting from pleа bargains are involuntary, as indeed he could not.
Monsour v. Cady,
“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.”411 U.S. at 267 ,93 S.Ct. at 1608 .
The same principle applies here. The only claim which petitioner has actually made for the involuntariness of his guilty plea is that he misgauged the strength of the prosecution’s case against him. This is not sufficient.
The judgment of the District Court is therefore
Affirmed.
Notes
. Schnuck testified that he had known the informant for about six weeks and that the informant had given information which proved to be reliable on approximately six occasions.
. The record contains an affidavit from Weber in which he states that on March 7, 1970, acting for Detective Schnuck, he went to Stevenson’s home and attempted to buy illegal drugs. He states, however, that he was unsuccessful.
. The distinctiоn is questionable in itself, since the issue here is not that the officer saw the defendant at a time when the officer was violating the defendant’s Fourth Amendment rights.
. Since petitioner has not had a chance to reply to this argument, we invite him to submit any response he thinks desirable within the next 30 days.
. Transcript of change of plea and sentencing.