Opinion

United States Ex Rel. Sanders v. Rowe

460 F. Supp. 1128
1978 U.S. Dist. LEXIS 14270

Court: District Court, N.D. Illinois
Filed: Nov 20, 1978
Status: Published
Author: Bua
On the bench: Bua
Cited by: 27 cases
Authority: More cited than 95.3%

Although the determination of the time at which adversary judicial proceedings begin is a question of federal constitutional law, federal courts “defer to a state statute or opinion fixing the time that adversary judicial proceedings commence, if the time chosen is prior to that required by Kirby.”

How later courts described this case

Although the determination of the time at which adversary judicial proceedings begin is a question of federal constitutional law, federal courts “defer to a state statute or opinion fixing the time that adversary judicial proceedings commence, if the time chosen is prior to that required by Kirby.”
failure scrupulously to honor defendant's previously invoked right to counsel was "constitutional error;" subsequent confessions given after Miranda warnings inadmissible
collecting commentaries on Stone
“The existence of an important, difficult, or complicated question of law, where there is no genuine issue of material fact, is not a bar to a summary judgment.”

Written by the judges who cited it.

The opinion

OPINION

BUA, District Judge.

James M. Sanders filed this petition for a writ of habeas corpus to challenge his March 21, 1977, conviction of two armed

*1131

robbery charges in the Circuit Court of Winnebago County, Illinois. Petitioner claims that two confessions

which were admitted against him at his trial were obtained in violation of his right to counsel at interrogation sessions, and should have been suppressed pursuant to the fifth, sixth, and fourteenth amendments to the United States Constitution. This issue was timely raised in the trial court and on appeal to the Illinois Appellate Court and the Illinois Supreme Court. Petitioner’s conviction at a stipulated bench trial was affirmed on appeal.

People v. Sanders,

55 Ill.App.3d 178 , 13 Ill.Dec. 186 , 370 N.E.2d 1213 (2d Dist. 1977),

petition for leave to appeal denied,

No. 50387 (March 30, 1978) (unpublished order). The parties agree that petitioner has exhausted all state remedies.

The case is now before the court on respondents’ motion to dismiss, and on petitioner’s cross motion for summary judgment. The court’s findings of fact and conclusions of law are based on the record of the state proceedings and the findings made by the circuit court judge. Though the state court’s record and findings are ambiguous on many points, this court relies on them here, in holding that the petitioner is entitled to summary judgment on the basis of the undisputed facts.

See Williams

Brewer,

509 F.2d 227 (8th Cir. 1975) (a district court may properly rely on undisputed state court findings of fact in conducting its independent review of a habeas petitioner’s constitutional claims),

aff’d,

430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 423 (1977). To the extent that there is any genuine issue of material fact herein, it has been resolved in favor of the state. Accordingly, an evidentiary hearing has not been necessary.

See

Rule 8(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254;

Blackledge v. Allison,

431 U.S. 63, 81-82 , 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977).

II.

At 1:00 a. m. on January 13,1977, Officer Charles Bishop of the Rockford Police Department observed three men struggling near the corner of State and Madison Streets in Rockford.

Two of the men fled as Bishop approached, and he chased them. Bishop recognized one of the men as the petitioner. While chasing the men, Bishop passed a parked patrol car containing Rockford Officers Frew and Lindstrom, and he asked them to chase the green Buick in which the pair had fled. Bishop then returned to the third man, Frank Barbero, who was lying on the ground. Barbero told Bishop that the two suspects had attempted to rob him and were armed.

After a chase, Frew and Lindstrom stopped the Buick. In the car were three men: the petitioner, Mark Manley, and Boyce Smelser. The officers searched the car and found a .32 caliber revolver, apparently stained with dried blood, and a “club-type” instrument.

The suspects were then advised of their rights pursuant to

Miranda v. Arizona,

384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and taken to the police station. There was conflicting testimony at the preliminary hearing as to whether petitioner was drunk at the time of his arrest. (R. 64-66, 72, 238-39).

*1132

At the station, petitioner was again advised of his

Miranda

rights. He signed a waiver of rights form, then gave a statement denying any participation in the offense. At about 3:00 a. m. he was taken to jail.

Six hours later, at 9:00 a. m., petitioner was interrogated by Rockford Police Detectives Bland and Fegan.

At 9:24, they again read the petitioner his rights and asked if he understood them. He said that he did and, according to the detectives’ testimony, said that he wished to speak to an attorney.

The detectives did not, however, cease their interrogation. They took no steps towards providing petitioner with a lawyer.

After petitioner requested a lawyer, the detectives told him that they had a strong case against him and that he would almost certainly be convicted and sentenced to a minimum of four years in prison. They described the substance of their case to him, including the fact that they had obtained an oral statement from Smelser and a written statement from Manley. When the petitioner asked to see Manley’s statement, the detectives refused to show it to him. They did fold the paper so he could see Manley’s signature. A few minutes later, petitioner agreed to give a statement and signed a written waiver form.

This statement admitted an involvement in the armed robbery of Barbero.

At some point prior to 5:00 p. m. that day, a criminal complaint charging petitioner with armed robbery in the Barbero case was sworn by Detective Bishop and filed in the Winnebago County Circuit Court Clerk’s Office.

During the afternoon, petitioner, still in custody, was moved to the Sheriff’s office at the Winnebago County Courthouse. At 5:40, Sergeant England and Officers Ferger and Shimaitis of the Winnebago County Sheriff’s Department began interrogating the petitioner about a second armed robbery. Petitioner was advised of his

Miranda

rights and again signed a written waiver form.

At about 6:00 p. m., petitioner confessed to the armed robbery of Smith T. Randol on the night of January 12, the same night as the Barbero robbery.

That evening, Officers Rollins and McGill of the Boone County Sheriff’s Department interviewed petitioner at the Winnebago County Sheriff’s Office. At about 9:00 p. m., petitioner signed another written waiver of rights form. He then confessed to the armed robbery and aggravated battery of James Collins, also on the evening of the twelfth.

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A preliminary hearing was held in the case on January 20, 1977, and a hearing on the motion to suppress was held on March 16, 1977. At the suppression hearing, the trial court ruled against the defendant’s motion to suppress. The judge issued no written findings. His ruling from the bench, in part, was that:

I believe they are adult young men who signed these waivers understanding^, knowingly. I believe the statements were signed voluntary, [sic] I think there are cases that indicate even psychological coercion is wrong, but I don’t believe there was sufficient psychological coercion on these two young men to make these statements involuntary.

Therefore, the statements will be admitted. .

(R. 282).

On March 21, 1977, the petitioner’s case was called for trial. The lawyers announced a plea agreement, under which petitioner would plead guilty to two armed robbery charges, for the Randol and Collins robberies, while the charge of attempted armed robbery of Barbero and the aggravated battery charges would be dismissed. The state agreed to recommend a penalty of four to twelve years imprisonment, to run concurrently on both charges. After the prosecutor summarized the state’s version of the events leading up to petitioner’s arrest, the judge proceeded to inform the defendant of his rights pursuant to Illinois Supreme Court Rule 402, Ill.Rev.Stat. ch. 110A, § 402 (1975).

At the conclusion of the admonitions, the petitioner asked whether his entry of a guilty plea would terminate his right to appeal from the trial court’s denial of his suppression motion. When told that it would, the defendant seemed surprised, so the court ordered a recess. After the recess, the judge asked the lawyers if they had found a way to preserve petitioner’s right to appeal. They said that they had, by agreeing to a stipulated bench trial. The petitioner stipulated to the evidence presented at the preliminary hearing and the motion to suppress. He also stipulated that the statement of facts made by the prosecutor would be the proof the prosecutor would offer in the case. (R. 18, 29-30).

See

note 57,

infra.

After further admonitions and discussion, the judge found the petitioner guilty of the Collins and Randol armed robberies, and entered judgment as agreed to in the plea agreement.

Petitioner appealed to the Illinois Appellate Court. On December 7, 1977, the appellate court affirmed the conviction.

People v. Sanders,

55 Ill.App.3d 178 , 13 Ill.Dec. 186 , 370 N.E.2d 1213 (2d Dist. 1977). In its opinion, the court ruled that the Barbero confession was inadmissible under

Miranda v. Arizona,

384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), since the Rockford police officers had failed to honor petitioner’s original request for an attorney. It ruled that thé admission of the confession was harmless error, however, since the second and third confessions were found to be admissible. These later confessions, the court held, were not tainted by the earlier

Miranda

violation, since the passage of time, repeated admonitions, and other factors were sufficient to dissipate any taint. 55 Ill. App.3d at 183-84 , 13 Ill.Dec. at 190 , 370 N.E.2d at 1217 . In addition, the court concluded that the use of a stipulated bench trial, while not good practice, was acceptable in this case. 55 Ill.App.3d at 184 , 13 Ill.Dec. at 191 , 370 N.E.2d at 1218 . The Illinois Supreme Court denied the petitioner’s request for leave to appeal. No. 50387 (March 30, 1978) (unpublished order).

III.

Petitioner asks this court to find that the Randol and Collins confessions were illegal

*1134

ly obtained, and that these confessions, as well as the Barbero confession, should have been suppressed at trial. Petitioner claims that he had a right to have counsel present at the second and third interrogations,- pursuant to his unanswered request at the first interrogation.

This asserted right flows from two separate constitutional provisions.

First, petitioner claims a 'right to counsel at the interrogations under

Miranda v. Arizona,

384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), in order to protect the exercise of his fifth amendment rights. He argues that the Seventh Circuit’s decision in

United States ex rel. Williams v. Twomey,

467 F.2d 1248 (7th Cir. 1972), mandates the suppression of any statement made to police after the denial of the

Miranda

right to counsel, at least until such time as counsel was actually provided. The petitioner also claims a sixth amendment right to counsel, under

Brewer v. Williams,

430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977) and

Massiah v. United States,

377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964).

The second and third confessions might be suppressed as independently violative of either the fifth or the sixth amendment. They may also be suppressed as tainted fruit of earlier fifth or sixth amendment violations, unless the connection to the earlier confessions was sufficiently attenuated to dissipate the taint.

See Brown

Illinois,

422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975);

Wong Sun v. United States,

371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963).

The state opposes the petitioner’s claims. It also argues that petitioner waived any right to counsel that he possessed,

see Johnson

Zerbst,

304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), when he signed

Miranda

waiver forms before giving the confessions.

The fifth and sixth amendment claims are analytically different, and will be considered separately.

See Brewer

Williams,

430 U.S. at 397-98 , 97 S.Ct. 1232 ;

United States v. Brown,

569 F.2d 236, 240 (5th Cir. 1978) (en banc) (Simpson, J., dissenting). Similarly, the waiver and taint doctrines, while related, will also be separated for purposes of discussion.

See United States v. Massey,

437 F.Supp. 843 (M.D. Fla.1977).

See also United States v. Duvall,

537 F.2d 15, 21-22 (2d Cir. 1976). Under Illinois law, prosecutions are commenced upon the issuance and filing of a complaint, information, or indictment.

See

Ill.Rev.Stat., ch. 38, §§ 111-1—111-2;

People v. Billings,

52 Ill.App.3d 414, 424 , 9 Ill.Dec. 903, 912 , 367 N.E.2d 337, 346 (1st Dist., 1977);

People v. Robins,

33 Ill.App.3d 634, 637 , 338 N.E.2d 222, 225 (4th Dist. 1976). Thus, “[t]here is no question but that after the defendant is charged either by information, complaint, or indictment, it is an adversary proceeding and he is so entitled to counsel”

People v. McDonald,

23 Ill.App.3d 86, 90 , 318 N.E.2d 489, 491 (2d Dist. 1974), aff’d 62 Ill.2d 448 , 343 N.E.2d 489 (1976).

Accord, People v. Marshall,

47 Ill.App.3d 784, 786 , 8 Ill.Dec. 129, 131 , 365 N.E.2d 367, 369 (1st Dist. 1977);

People v. Hinton,

23 Ill.App.3d 369, 372 , 319 N.E.2d 313, 315-16 (2d Dist. 1974).

It is therefore irrelevant for sixth amendment purposes that no indictment or information was filed against petitioner on January 13. Since a complaint had been issued and filed, adversary judicial proceedings • had begun against petitioner by 5:00 p. m. on January 13, see_p. 1132

supra.

His sixth amendment rights had therefore attached.

The sixth amendment rule governing this case was established in

Massiah v. United States,

377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1974), where the Supreme Court held “that the petitioner was denied the basic protection of . [the sixth amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206 , 84 S.Ct. at 1203. “That the incriminating statements were elicited surreptitiously in the

Massiah

case, and otherwise here, is constitutionally irrelevant. Rather, the clear rule of

Massiah

is that once adversary proceedings have commenced against an individual, he has a right to legal representation when 'the government interrogates him.”

Brewer v. Williams,

430 U.S. at 400 , 97 S.Ct. at 1240 (citations omitted).

It is also irrelevant that the second and third interrogations pertained to different crimes than the first interrogation and were conducted by a different police agency.

Massiah

itself, information from the illegally induced conversation was used to broaden the charges against Massiah, resulting in new counts being brought

*1140

against him, as well as the introduction of new defendants.

See United States v. Merritts,

527 F.2d 713 , 715 n.4 (7th Cir. 1975).

“Massiah

applies to incriminating statements about past conduct obtained after indictment through the equivalent of police interrogation.”

United States v. Merritts,

527 F.2d at 716 .

Waiver of Sixth Amendment Right to Counsel

Since

Massiah

applied to the second and third confessions, and no counsel was present when those statements were made, they were

per se

inadmissible, unless petitioner waived his

Massiah

right to counsel. Waiver of the sixth amendment right to counsel is possible, but only if there is an intentional relinquishment of a known right or privilege.

Brewer v. Williams,

430 U.S. at 404 , 97 S.Ct. 1232 (citing

Johnson v. Zerbst,

304 U.S. at 464 , 58 S.Ct. 1019 ).

See generally United States v. Durham,

475 F.2d 208 (7th Cir. 1973);

United States v. Crisp,

435 F.2d 354 (7th Cir. 1970),

cert. denied,

402 U.S. 947 , 91 S.Ct. 1640 , 29 L.Ed.2d 116 (1971).

The state must meet a very high burden of proof, however, in order to show a waiver.

As the Court held in

Brewer:

“the right to counsel does not depend upon a request by the defendant . and . . . courts indulge in every reasonable presumption against waiver. . . This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.” Brewer

v. Williams,

430 U.S. at 404 , 97 S.Ct. at 1242 .

It is not enough that the defendant be informed of and appear to understand his right to counsel. “[W]aiver requires not merely comprehension but relinquishment . . . .”

Id.

Furthermore, waiver for sixth amendment purposes will not be presumed merely because the state can demonstrate a waiver of the

Miranda

fifth amendment right to counsel, for there is authority for applying a higher standard for waiver of the sixth amendment right to counsel.

United States

Satterfield,

558 F.2d 655, 657 (2d Cir. 1976), presumably including the full requirements for waiver of the right to counsel at trial, see

Faretta v. California,

422 U.S. 806, 835-36 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). The state’s high burden in this area is even harder, “if not impossible, to sustain when the record shows that a request for counsel was made which was not honored before questioning continued.”

Maglio v. Jago,

580 F.2d 202, 205 (6th Cir. 1978).

*1141

Since this court has found that the state has not even met its burden for establishing a waiver of petitioner’s fifth amendment right to counsel, it is clear,

a fortiori,

that it has not established a waiver of his sixth amendment right to the presence of counsel, particularly in light of petitioner’s prior request that his counsel be present.

VI.

The state argues that the Supreme Court’s decision in

Stone v. Powell,

428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), which limited federal habeas review of state prisoners’ fourth amendment claims, should be extended to state prisoners’ claims based on the fifth and sixth amendments. This question has been noted by the Supreme Court in

Wainwright v. Sykes,

433 U.S. 72 , 87 n.11, 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), and in

Brewer

Williams,

430 U.S. 387, 413-14 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977). It has also been noted by the Seventh Circuit.

See White v. Finkbeiner,

570 F.2d 194 , 200 & n.2 (7th Cir. 1978);

United States ex rel. Henne v. Fike,

563 F.2d 809 (7th Cir. 1977),

cert. denied,

434 U.S. 1072 , 98 S.Ct. 1257 , 55 L.Ed.2d 776 (1978). This court has carefully considered the arguments for extending

Stone ,

but finds more persuasive the arguments that

Stone

is and should remain limited to fourth amendment claims.

Stone v. Powell, supra,

Powell sought federal habeas review of his California state court conviction for murder. The evidence at trial included a revolver taken from him upon his arrest for violation of a local vagrancy ordinance. The state courts, both at trial and on appeal, rejected Powell’s arguments that the ordinance was unconstitutional, the search invalid, and the gun inadmissible as evidence in the murder case. Powell’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

was denied by the federal district court, but granted by the court of appeals.

See

507 F.2d 93 (9th Cir. 1974),

rev’d,

428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976).

The Supreme Court reversed the court of appeals, holding

“only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim 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 -95 n.37, 96 S.Ct. at 3053.

Unfortunately, the Supreme Court’s decision is open to widely divergent interpretations.

The decision seems to be grounded

*1142

on several premises, and commentators have advanced different rationales for the opinion.

All of these rationales can find some support in the opinion. Some of them are not logically limited to fourth amendment violations. Adopting one of the later as the central holding of

Stone v. Powell

would thus require that the decision be extended to certain other classes of constitutional claims.

One premise identified by several commentators as central to

Stone v. Powell

is that federal habeas relief should not be available to all prisoners whose constitutional rights were violated when they were convicted, but should be reserved for the innocent.

Two strands of this argument have developed. The first interprets the decision as being concerned with the distinction between the factually guilty and the factually innocent, with only the arguably innocent being entitled to habeas.

If this view were adopted, the petitioner in this case would not be entitled to habeas relief on either his fifth or sixth amendment claims.

The other strand views the decision as being concerned with the factfinding process. Constitutional claims based on doctrines which protect the accuracy of the factfinding process, such as the rule against the admission of involuntary confessions in the prosecution’s case-in-chief,

see e. g., Jackson v. Denno,

378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1963), could be raised on federal habeas, while claims which did not affect the reliability of the process, such as fourth amendment claims or failure to give the

Miranda

warnings, could not.

Under this view, petitioner’s fifth amendment claims would be barred. His sixth amendment claims, however, might still be raised, as the right to counsel has been viewed as protecting the reliability of the factfinding process.

Both of these strands find their origin in Justice Powell’s concurring opinion in

*1143

Schneckloth v. Bustamonte,

412 U.S. 218, 250-75 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (Powell, J., concurring). There, joined by the Chief Justice and Justice Rehnquist, he reviewed the history of habeas corpus and concluded that it should be applied in fourth amendment cases only when the petitioner could make a “colorable showing of innocence.” Although Justice Powell limited his discussion to fourth amendment cases, he clearly felt that the same considerations applied to cases involving fifth and sixth amendment issues.

Another suggested ground for the decision is based on the difference between Supreme Court decisions defining personal constitutional rights and those which set up prophylactic rules to enforce constitutional rights.

Adherents of this approach suggest that

Stone v. Powell

held that the fourth amendment exclusionary rule should not be enforced through federal habeas corpus because it does not define a personal right. Similarly, they claim that

Miranda

violations, which do not infringe upon personal constitutional rights, but merely prophylactic rules set up for the protection of those rights,

see Michigan v. Tucker,

417 U.S. 433, 443-44 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), also should not be entitled to federal habeas review.

The same balancing analysis used by the Court in limiting the fourth amendment exclusionary rule, it is claimed, applies with equal force to

Miranda’s

exclusionary requirements, and perhaps to. other prophylactic rules as well.

Thus, while this analysis would probably not apply to sixth amendment claims, see

United States ex rel. Hudson v. Cannon,

529 F.2d 890, 892-94 (refusing to extend

Michigan v. Tucker

Escobedo

violations because of differences in balancing process when sixth amendment claims are at issue);

cf. Brewer

Williams,

430 U.S. at 422-28 , 97 S.Ct. 1232 (Burger, C. J., dissenting) (calling for consideration of the applicability of

Stone v.

Powell) (identifying the Court’s refusal to apply

Stone

as based on the difference between the fourth and sixth amendments), it would bar petitioner from bringing his fifth amendment claims before this court.

Although this court finds the later analysis to be more compelling than the former,

cf. White

Finkbeiner,

470 F.2d at 200 (strong argument can be made that

Stone

applies to Miranda), it is not convinced that either accurately describes the basis of the Supreme Court’s decision.

Instead, the court is persuaded by those commentators who have taken a different approach and argued that

Stone v. Powell

is grounded primarily in fourth amendment considera

*1144

tions.

See Wilson v. Henderson,

584 F.2d 1185, at 1189 (2d Cir. 1978).

The balancing approach to the exclusionary rule taken by the Supreme Court in

Stone v. Powell

is similar to that applied in recent years in many other fourth amendment cases.

See, e. g., United States v. Ceccolini,

435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978);

United States v. Janis,

428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976);

United States v. Calandra,

414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974). Even though the Court reaffirmed, 428 U.S. at 493, 96 S.Ct. 3037 , the fourth amendment exclusionary rule

of Mapp

Ohio,

367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1084 (1961), the Court’s opinion, in reviewing many decisions where the rule has been limited, 428 U.S. at 482-95, 96 S.Ct. 3037 , suggests that its primary concern was with fourth amendment doctrine, rather than federal habeas law in general.

See

Boyte,

supra

note 37, at 298-99, 313-14; Soloff,

supra

note 36, at 307, 314-15;

Innocence, supra

note 37, at 384 n.13;

Exclusionary Rule, supra

note 37, at 99.

Several reasons support this interpretation of

Stone v. Powell.

First, the language of the opinion itself, as quoted above at p. 1141, clearly indicates that the decision was meant to be a limited one. The Court, in responding to Justice Brennan’s charge that it planned to expand the opinion to include other constitutional violations,

see

428 U.S. at 517-18 & 518 n.13, 96 S.Ct. 3037 (Brennan, J., dissenting), stated that “the hyperbole of the dissenting opinion is misdirected,” and emphasized the limited nature of its opinion, 428 U.S. at 494-95 n.37, 96 S.Ct. 3037, 3052 .

See Greene v. Massey,

546 F.2d 51 (5th Cir. 1977) (construing above passage as demonstrating the limited nature of

Stone v. Powell), rev’d on other grounds,

437 U.S. 15 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978); Boyte,

supra

note 34, at 296-99. Furthermore, the Supreme Court has heard several state habeas cases since

Stone v. Powell

in which fifth and sixth amendment rights were at issue without choosing to expand the doctrine. It is true that in some the Court, or a member thereof, specifically noted the question and observed that it remained open.

See Wainwright v. Sykes,

433 U.S. 72 , 87 n.11, 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977)

(Miranda

violation);

Castaneda v. Partida,

430 U.S. 482 , 508 n.1, 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (Powell, J., concurring) (grand jury discrimination);

Brewer v. Williams,

430 U.S. 387, 413-14 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977) (sixth amendment right to counsel). In other cases, however, the Court has considered the merits of habeas claims without ever mentioning

Stone v. Powell. See Greene v. Massey,

437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978) (double jeopardy);

Crist v. Bretz,

437 U.S. 28 , 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978) (double jeopardy);

Moore v. Illinois,

434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977) (right to counsel) (opinion for the Court by Powell, J.);

Manson

Brathwaite,

432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977) (pretrial identification) (sixth amendment); see

also Mincey

Arizona,

437 U.S. 385 , 98 S.Ct. 2408, 2419 , 57 L.Ed.2d 290 (1978) (Marshall J., concurring).

(Stone

Powell

does not apply to fifth amendment claims). Indeed, in

Greene ,

the applicability of

Stone v. Powell

was specifically argued to the Justices, see Brief of Respondent at 9-21, following the Fifth Circuit’s ruling that the decision does not apply to double jeopardy claims,

Greene v. Massey,

546 F.2d 51 (5th Cir. 1977). The Supreme Court reversed the Fifth Circuit’s denial of habeas relief without discussing

Stone

Powell .

Thus, the limited nature of the

Stone v. Powell

holding, combined with the Court’s repeated failure to extend the ruling, indicates that a majority of the members of the Court are unwilling to expand this doctrine.

*1145

Other lower courts have also failed to extend

Stone v. Powell.

Although this court is aware of no lower court opinion extensively discussing the extension of

Stone,

it is aware of eight decisions which have considered the matter. In six cases, the courts have stated that it does not apply to fifth or sixth amendment claims.

See Wilson

Henderson,

584 F.2d 1185, 1189 (2d Cir. 1978) (Miranda) (dicta) (declined to extend

Stone

in that case);

Smith

Wainwright,

581 F.2d 1149, 1151-52 (5th Cir. 1978) (Miranda) (dicta);

Swicegood v. Alabama,

577 F.2d 1322, 1325 (5th Cir. 1978) (lineup — due process claim);

Morgan v. Hall,

569 F.2d 1161, 1168-69 (1st Cir. 1978) (prosecutorial questioning of defendant concerning exercise of

Miranda

right to silence) (violation of

Doyle v. Ohio,

426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 [1976]);

Greene

v. Massey, 546 F.2d 51 , 53 n.6 (5th Cir. 1977) (double jeopardy),

rev’d on other grounds,

437 U.S. 15 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 ;

United States ex rel. Burton v. Cuyler,

439 F.Supp. 1173 , 1182 n.14 (E.D.Pa.1977) (lineup — sixth amendment). Only in

Richardson v. Stone,

421 F.Supp. 577, 579 (N.D.Cal. 1976)

(Stone

Powell

applies to

Miranda

violations) (alternative holding: no

Miranda

violation); and

Moore v. Cowan

(W.D.Ky.) (unreported),

aff’d on other grounds,

560 F.2d 1298, 1301 (6th Cir. 1977)

(Doyle

violation) (alternative holding: harmless error), were extensions of

Stone

Powell

approved, and the discussion in those cases was dicta.

Finally, this court notes that the Supreme Court has repeatedly stated that the rights protected by the fifth and sixth amendments are more closely related to the fairness and accuracy of a criminal trial than those guaranteed under the fourth amendment.

A passage from

Schneckloth v. Bustamonte,

412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), is illustrative:

There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment.

A strict standard . . . has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote: ‘the sound reason why [the right to counsel] is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself.

The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. . . The guaran

*1146

tees of the Fourth Amendment stand “as a protection of quite different constitutional values . . [quoting

Tehan v. United States ex rel. Shott,

382 U.S. 406, 416 , 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966)].

412 U.S. at 241-42 , 93 S.Ct. at 2055 .

This court will not do what the Supreme Court and other lower courts have so far refused to do. It will not extend the opinion in

Stone

Powell

to cover fifth and sixth amendment claims.

The doors of this court must remain open to prisoners whose meritorious claims to fifth and sixth amendment rights have been denied by the state courts.

VII.

Finally, the state contends that the introduction of the petitioner’s second and third confessions at the stipulated bench trial was harmless error. The Illinois Appellate Court found that the admission of petitioner’s first confession, which it ruled was obtained in violation of

Miranda, supra,

was harmless error.

55 Ill.App.3d at 183—84, 13 Ill.Dec. at 190-91 , 370 N.E.2d at 1217-18 . It is almost impossible to conceive, however, that the admission of three inadmissible confessions could ever be harmless error. The state has not cited any cases which have so held. It has certainly not shown that there is no reasonable possibility that the introduction of the three confessions might have contributed to the conviction.

See Chapman v. California,

386 U.S. 18, 23 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Accordingly, this court cannot find the error to have been harmless beyond a reasonable doubt.

See Chapman v. California, supra; Martin

Indiana,

521 F.2d 682, 685 (7th Cir. 1975);

cf. People v. Grant,

45 N.Y.2d 358, 363-64 , 408 N.Y.S.2d 429, 435-37 , 380 N.E.2d 257 (1978) (vacating guilty plea when it followed erroneous denial of motion to suppress for violation of

Miranda

right to counsel) (error could rarely, if ever, be harmless).

The state further contends that even if the error is not harmless under traditional standards, the court must find it to be harmless in this case, since the petitioner stipulated to the state's case at trial. This argument is based on the holding of the Illinois Appellate Court that petitioner stipulated to the state’s proof in the case and that the quantum of proof remaining after the suppression of the first confession was still sufficient to convict him.

55 Ill. App.3d at 184 , 13 Ill.Dec. at 191 , 370 N.E.2d at 1218 (alternative holding: harmless error).

Santobello

New York,

404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971), the Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262 , 92 S.Ct. at 499. It is this court’s duty,

see Townsend v. Sain,

372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963), to make an independent review of the record of the stipulated bench trial, in

*1147

order to determine the legal effect of the stipulation.

The relevant portion of the record is set out in the'margin.

From the record, it is clear that petitioner did not stipulate to the truth of the prosecution’s' case. He only stipulated that the

*1148

evidence stated by the prosecutor to the court, together with the record of the prior hearings in the case and the three challenged confessions, would be the case presented by the prosecutor. (R. 18-19).

Furthermore, it is absolutely clear from the record that petitioner would not have entered into the bench trial stipulation without a guarantee from the trial judge and the prosecutor that he could appeal the motion to suppress. Initially, petitioner refused to plead guilty when he discovered he would lose his right to appeal. Not only did the judge assure him, with the prosecutor’s approval, that his right to appeal the motions to suppress would be preserved, the judge specifically assured him that “should the Appellate Court disagree .with me and return this for jury trial, it will be tried on all issues. . . . ” (R. 25).

This court therefore finds that the prosecutor’s and trial judge’s promise that petitioner would have a right to appeal the trial court’s ruling on the motion to suppress, together with their guarantee that if petitioner won such an appeal he would receive a new trial at which the confessions and stipulations would be inadmissible, were, as a matter of federal constitutional law, part of the inducement or consideration for petitioner’s agreement to the stipulated bench trial.

See Santobello v. New York, supra; United States v. Michigan Carton Co.,

552 F.2d 198, 202 (7th Cir. 1977) (appeal will be allowed from a conditional plea when the defendant relies upon the trial judge’s representation that an appeal is permissible);

United States v. Brown,

499 F.2d 829, 832 (7th Cir. 1974) (appeal will be allowed from a conditional plea when the defendant relies upon the trial judge’s representation that an appeal is permissible).

See also United States ex rel. Ferris v. Finkbeiner,

551 F.2d 185 (7th Cir. 1977),

cert. denied sub nom. Rowe v. Ferris,

435 U.S. 932 , 98 S.Ct. 1508 , 55 L.Ed.2d 530 (1978);

United States ex rel. Baker v. Finkbeiner,

551 F.2d 180 (7th Cir. 1977);

People v. Schleyhahn,

4 Ill.App.3d 591 , 281 N.E.2d 409, 412 (4th Dist. 1972).

These promises must be enforced,

see Santobello v. New York, supra; United States v. Bowler,

585 F.2d 851, 853-855 (7th Cir. 1978), and petitioner is entitled to a new trial on all issues

see United States v. Bowler,

585 F.2d at 855-856 (remedy for plea agreement not honored by the government may be fashioned by the court using its sound discretion).

VIII.

In summary, the court holds that:

1. Petitioner’s first confession was obtained in violation of his

Miranda

right to the presence of counsel at his interrogation.

2. Since no counsel was provided before the second and third confessions, and the state did not carry its burden of demonstrating a waiver, if such a waiver is possible, petitioner was denied his

Miranda

right to the presence of counsel at his second and third confessions.

3. Petitioner’s second and third confessions are also inadmissible as the tainted product of his inadmissible first confession.

*1149

4. Petitioner’s second and third confessions were obtained in violation of his sixth amendment right to counsel at a critical stage of his prosecution.

5. Petitioner did not waive the exercise of this sixth amendment right.

6. The Supreme Court’s decision in

Stone

Powell, supra,

was not intended to cover and should not be extended to cover federal habeas cases brought by state prisoners whose fifth and sixth amendment rights have been violated.

7. Admission of the three inadmissible confessions at petitioner’s stipulated bench trial was not harmless error.

8. The stipulation made at the bench trial entitles petitioner to a new trial, at which the suppressed confessions will be excluded. Petitioner’s stipulation with the prosecutors, made to preserve his right to appeal, will be inadmissible.

Accordingly, respondents’ motion to dismiss is denied. Petitioner’s motion for summary judgment is granted. The writ of habeas corpus is granted. Pursuant to Rule 23, Fed.R.App.Pro., petitioner may apply to this court for bond pending appeal of this case, or pending a retrial by the state. Any retrial must be conducted within ninety days of the entry of final judgment.

. A third confession to an additional crime was also admitted at trial. It was ruled inadmissible by the Illinois Appellate Court.

See

p. 1133,

infra.

In deciding this case, the court finds it necessary to resolve several undecided questions of constitutional law. The existence of an important, difficult, or complicated question of law, where there is no genuine issue of material fact, is not a bar to a summary judgment. 6 Pt. 2 Moore’s Federal Practice 56.16, at 56-661 & n.1 (2d ed. 1976).

. Should the

court

have reached a different resolution of the petitioner’s legal claims, an evidentiary hearing might have uncovered facts sufficient to support the testimony given by petitioner in the state court, thereby providing additional grounds for habeas relief.

. These facts are drawn from the testimony given at the preliminary hearing held on March 16, 1977, and from the decision of the appellate court, 55 Ill.App.3d at 179-80 , 13 Ill.Dec. at 187-88 , 370 N.E.2d at 1214-15 .

. These were not introduced into evidence at trial.

. The petitioner testified that he was hungover and had a headache during the 9:00 interrogation session. He said that throughout the day of the interrogations, he was feeling ill from a bronchitis attack for which he had not sought medical treatment. (R. 243). Detective Bland testified that petitioner requested aspirin for a headache. (R. 120-21).

. It is unclear whether petitioner requested a specific attorney by name and phone number. Petitioner testified that he did, (R. 241), Bland testified that he didn’t, (R. 120), and Fegan testified that he could not recall whether he did or did not. (R. 133).

. Petitioner testified that he was told by the detectives that he would receive the maximum penalty if he did not cooperate, but that they would see he received a “very, very light sentence” if he did. (R. 242-43). He also testified that the detectives told him that he could not see his attorney until he gave them a statement, and that they refused to allow him to call his attorney during their interrogation. (R. 241-42).

. (Stip., filed Oct. 23, 1978). Complaints for the Randol and Collins robberies were sworn on Oct. 13 and 14, and filed on Oct. 14 and 21, respectively.

. The evidence is ambiguous as to whether any of the officers knew of petitioner’s prior statement to the Rockford police. The officers testified that they were unaware that petitioner had made any requests for counsel.

. Manley had confessed to this robbery at 2:38 p. m. that afternoon.

. Officer Rollins testified that he was aware that petitioner had made a previous statement to the Winnebago county police. All officers involved in the second and third confessions testified that petitioner did not request counsel in their presence.

The petitioner testified that at the later two interrogations he told the officers that he wished to speak to an attorney and that his requests were denied. He also testified that

*1133

the original interrogators had told him that he would be asked by other officers to “clear the books” and “not to worry about it.” (R. 246, 248, 251). He added that the second investigators told him no further charges would be pressed, and that he thought the second and third confessions would not be used against him. (R. 247, 259-60).

. The judge stated that he found the officers’ testimony to be generally more credible. (R. 280-282).

See United States

Mandujano,

425 U.S. 564 , 581 n.6, 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976) (plurality opinion);

cf. Kirby v. Illinois,

406 U.S. 682, 688 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972) (plurality opinion);

cf. Kirby v. Illinois,

406 U.S. at 692 n.2, 92 S.Ct. 1877 (Brennan, J., dissenting)

(Miranda

also protects sixth amendment rights);

Coleman v. Alabama,

399 U.S. 1, 16 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970) (Douglas, J., concurring)

(Miranda

also protects sixth amendment rights).

See generally United States v. Miller,

432 F.Supp. 382, 385-87 (E.D. N.Y.1977).

. Other circuits have refused to adopt such a rule.

See United States v. Rodriguez-Gastelum,

569 F.2d 482 (9th Cir.) (en banc), cert.

denied,

436 U.S. 919 , 98 S.Ct. 2266 , 56 L.Ed.2d 760 (1978);

Nash v. Estelle,

560 F.2d 652 (5th Cir. 1977),

rehearing en banc granted,

No. 75-3772 (Dec. 15, 1977);

United States v. Grant,

549 F.2d 942 (4th Cir. 1977);

Cf. Maglio v. Jago,

580 F.2d 202 (6th Cir. 1978) (reserving question);

see

cases collected at

People v. Grant,

45 N.Y.2d 358 , 363 n.1, 408 N.Y.S.2d 429 , 434 n.1, 380 N.E.2d 257 (1978).