Petition — DiPaola v. Mitchell

a yy Court, U,

FILED

NOV J 1978

ceeneme

‘i MI@HAEL —SHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

no. €8-728

RONALD A. DIPAOLA,

Petitioner,

af v..

rowan ling or eg

Virginia State Penitentiary,

WILLIAM H. PowELL, Sheriff,

Sussex County, Virginia,

James D. Swinson, Sheriff,

Fairfax County, Virginia,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN KENNETH ZWERLING

ZWERLING & SHAPIRO

108 North Columbus Street

Post Office Box 383

Alexandria, Virginia 22313

(703) 836-5551

Attorney for Pettticner.

Washington, 0.C. + THIEL PRESS + (202) 638-4521

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Page

TABLE OF CONTENTS

GPENSONE BRLGW . ww cw te te te 8

ES fg ie a kk wo Oe ee

QUESTIONS PRESENTED ....-..+.+.-+ 2

STATUTORY AND CONSTITUTIONAL

gs es wk + 6 ee we

STATEMENT OF THE CASE ...+- +++ +3

REASONS FOR GRANTING THE WRIT

I. The Court should resolve whether

Stone v. Powell bars federal

habeas corpus relief for fourth

amendment claims based on egregious

bad faith conduct by state police

oe, a

II. The Court should provide explicit

guidance as to the meaning of the

requirement of "full and fair

opportunity” to litigate fourth

amendment claims in state court . ll

III. The retroactive application of

Stone v. Powell works an unnec-

essary and serious injustice on

petitioners whose fourth amend-

ment claims were never heard on

the merits in state court and who

had been granted federal habeas

corpus relief at the time that

meme WES Geeiges . . 2 nc cnn a

oe BE ea OE Sige ee re ee

(ii)

TABLE OF CONTENTS (cont. )

Appendix:

A.

B.

DiPaola v. Riddle, No. 75-858-AM

i. oe. es aes. cs 6 8 es

DiPaola v. Riddle, No. 76-1352

[Sem Cas. Gepe. 27, 1976) .« 2 0 6

DiPaola v. Riddle, No. 75-858-AM

aaa eens Be Beer? « » 66 60 «

DiPaola v. Riddle, No. 75-858-AM

(E.D.Va. Jan. Ll 1977) . . . . . .

DiPaola v. Riddle, No. 77-1293

(tn Cae. AUG. 21, 1978) .. ss « 0 o

DiPaola v. Riddle, No. 77-1293

[on cae, Sees ae Bete? s oe. ' 6. «°*« «

Ww No. 35143

(Fairfax County Circuit Court

Nov. y +. 1975) . . . . . . . . . .

United States Constitution, Amendment

IV . . . . . . . . . . . . > . . . .

28 U.8.C. §2254 . . . . . . . . . .

Rules of the Supreme Court of

Virginia, Rule 3A:12 . . « «© «© « e

Rules of the Supreme Court of

Virginia, Rube 3A:@z2 . . « © ec a2 eo

Page

la

4a

5a

7a

10a

17a

18a

2la

22a

25a

28a

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Cardwell v. Norfolk & Western Railroad

Company, 114 Va. 500, 77 S.E. 612 (1913) 15

Fay Ve Noia, 372 U.S. 391 (1963) eee eee eeenee 7

Francis v. Henderson, 425 U.S. 536 (1976)... 14

Gates v. Henderson, 568 F.2d 830 (2d Cir.

1977) (en banc), cert. denied, U.S.

» 54 L.Ed. 2d 787 (1978) ..... 12, 14, 16

Holbrook v. Commonwealth, 165 Va. 700,

181 S.E. 353 (1935) ee eee eee eee eee eee eer 13

Holmes v. Commonwealth, 156 Va. 963, 157

SB. FSH CAFTA) ccccvccecvccccccccccccvcce AS

James v. United States, 366 U.S. 213 (1961) 15

Leigh v. Commonwealth, 192 Va. 583, 66 S.E.

See CEFSL) cocces cocccccccccecececcecceoes 14

Lemon v. Kurtzman, 411 U.S. 192 (1973) ..... 17

Lewis v. Commonwealth, 209 Va. 602, 166 S.E.

2d 248 (1969) eee e eee ee eee eee eee eee eee 14

Linkletter v. Walker, 381 U.S. 618 (1965) .. 17

Murray v. Smithson, 187 Va. 759, 48 S.E.

De ee SE Bb ebwhesaens eens teadcecesecs 25

O'Berry v. Wainwright, 546 F.2d 1204 (Sth

Cir.), cert. denied, 433 U.S. 911 (1977) . 13

Pulver v. Cunningham, 562 F.2d 198 (2d Cir.

1977) eeeeeveveaeeeveeeeeeeeeeeeoeeeeeeaeeeeeeee 10

Schnecklothv. Bustamonte, 412 U.S. 218

(1973) eeeeeevoeaeee eevee eeeeeeeeaeeaeaeeeeeeeeee q

Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d

680 (1974), cert. denied, 419 U.S. 1108

(1975) eoeeeeveveeeeeeeeeeeeeeeeeeeeeee Fe 6, 15

Stone v. Powell, 428 U.S. 465 (1976) passim

(iv)

Cases, continued: Page

United States v. Garner, 529 F.2d 962 (6th

Cir.), cert. denied, 479 U.S. 850 (1976) .. 15

United States v. Williams, 415 F.2d 232

(4th Cir. 1969) ee eee eeeeneee eee eee *eeeee . 14

Wainwright v. Sykes, 433 U.S. 72 (1977) ..... 14

Statutes:

28 U.S.C. BUZSA (1) wcccvecccccccccccesscscces 2

2B U.S.C. $2254 wcccccccccccccccccccccccccces 3

Other:

Rules of the Supreme Court of Virginia,

Rule 3AS12Z cccccccccccccccccccccccsecccce 3, 5

Rules of the Supreme Court of Virginia,

Rule 3A82Z2 wcccccccccccccecs ecccccccccccecce 3

Federal Rules of Criminal Procedure, Rule

U2(E) cccccccccccccccccccccccccodcceseseese 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

RONALD A. DiPAOLA,

Petitioner,

Vv.

WALTER M. RIDDLE, SUPERINTENDENT,

VIRGINIA STATE PENITENTIARY,

WILLIAM J. POWELL, SHERIFF, SUSSEX

COUNTY, VIRGINIA, JAMES D. SWINSON,

SHERIFF, FAIRFAX COUNTY, VIRGINIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Petitioner Ronald A. DiPaola respect-

fully requests that a Writ of Certiorari

issue to review the decision and judgment

of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Fourth Circuit has not yet been

officially reported. It is annexed to the

Petition as Appendix E (10a-l6a). The other

1

7

“4.

relevant decisions in this case also have

not yet been officially reported. The

initial decision of the District Court

granting habeas corpus is annexed to the

Petition as Appendix A (la-3a). The order

of the Court of Appeals vacating the District

Court judgment and remanding the case is

Appendix B (4a). The order of the District

Court on remand is Appendix C (5a-6a). The

memorandum opinion and order of the District

Court denying reconsideration is Appendix D

(7Ja-9a). The order of the Court of Appeals

denying rehearing is Appendix F (17a). The

order of the State court dismissing the

petition for habeas corpus filed in the

related case, DiPaola v. Swinson, No. 35143,

Circuit Court of Fairfax County, is Appendix

G (18a-20a).

JURISDICTION

The court issued its decision on August

21, 1978. It entered an order denying re-

hearing on October 2, 1978. This Petition is

timely filed. Jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Stone v. Powell restric-

tion on the exercise of federal habeas corpus

jurisdiction requires dismissal of a federal

habeas corpus petition when the Fourth

Amendment violation on which it is based was

not a technical one or due to any good faith

mistake, but was the result of willful,

bad faith, and flagrantly illegal conduct by

the police.

2. Whether petitioner had sufficient

opportunity to litigate his Fourth Amendment

claim in state court so as to bar relief by

federal habeas corpus when, through no fault

of his own or his counsel, they did not

learn of the facts supporting the claim until

3

after the trial, too late for the claim to

be considered on the merits by any state

court because of the state's strict pro-

cedural rules.

3. Whether, especially in view of the

above considerations, Stone v. Powell may

be applied retroactively to bar federal

courts from considering a compelling Fourth

Amendment claim when no state court has

addressed the merits of the claim, when the

time for pursuing any additional state pro-

cedures has passed, and when, by the standards

existing at the time of petitioner's ir-

revocable procedural decisions, he had

complied with the steps necessary to ensure

his eligibility for federal habeas corpus

review, under the law as it existed at the

time those steps were taken.

STATUTORY AND CONSTITUTIONAL PROVISIONS

Statutory and Constitutional provisions

relevant to the Petition are United States

Constitution Amendment IV; 28 U.S.C. § 2254;

Rules 3A:12, 3A:22 of the Supreme Court of

Virginia. They are set forth in full in

Appendix H-K (2la-28a) to this Petition.

STATEMENT OF THE CASE

On the basis of illegally seized evidence,

the Virginia State Court convicted the peti-

tioner, Ronald A. DiPaola, of possession of

marijuana with intent to distribute it. The

court sentenced him to serve a term of five

years in the state penitentiary and to pay a

fine of fifteen hundred dollars.

At the time the police made the egregious

entry leading to DiPaola's arrest and the

seizure of marijuana, DiPaola was in the

basement laundry room of a private home, un-

aware that the police were entering and unable

to see or hear their entry through the front

4

and back doors of the first floor of the

house. Not until shortly after his trial did

DiPaola and his trial counsel learn for the

first time of the flagrantly illegal manner

of the police entry.

Dressed in scruffy plain clothing, the

police had crashed through the front and back

doors, shattering the glass, waving guns, and

terrifying several people sitting in the living

room. The police had no warrant and had not

knocked before they entered, nor had they

announced who they were or their purpose. On

the contrary, they had maintained for a time

that they were not policemen, but were armed

robbers. (J.A. 214, 216-218) 1/

As mentioned, because the petitioner was

in the basement laundry room, he was unaware

of the nature of the police entry. Despite

his request for exculpatory materials, the

prosecution disclosed nothing about the forci-

ble entry into the house. (Supp. J.A. 8)

When he moved to suppress the evidence at

trial, the petitioner thus still did not

know of the improper entry and naturally

could not raise that as one of the grounds

for suppression. The state judge declined

to suppress on the other Fourth Amendment

grounds asserted by the petitioner at that

time. A jury convicted DiPaola on June 4,

1974.

Shortly after trial, DiPaola's trial

attorney interviewed another client who had

been arrested with DiPaola. In this inter-

view, the attorney learned for the first

time of the egregious nature of the police

entry. (Supp. J.A. 8-9) Because these facts

were not in the trial record, the petitioner

1/ The citation refers to the joint

appendix filed in the Court of Appeals.

"Supp. J.A."" refers to the supplemental joint

appendix filed in the Court of Appeals.

5

was unable effectively to raise the point

on his direct appeal to the Virginia Supreme

Court.

DiPaola petitioned for habeas corpus

in the state court, based on the forcible

entry claim. Though testimony was taken in

this proceeding, the judge refused to consider

the merits on the ground that Virginia law

barred subsequent review of evidentiary rul-

ings on grounds not raised at trial and on

appeal, relying on the contemporaneous

objection rule as applied by the Virginia

Supreme Court in Slayton v. Parrigan, 215

Va. 27, 205 S.E.2d 550 (1974), cert. denied,

419 U.S. 1108 (1975). Appendix G (18a-20a) 2/.

See Rule 3A:12(c) (1,2), Rules of the Supreme

Court of Virginia; Appendix J (25a-26a).

On December 19, 1975, DiPaola filed a

petition for a writ of habeas corpus in

Federal District Court. On January 28, 1976,

the court, having found that DiPaola had

sufficiently exhausted state remedies in view

2/ Slayton v. Parrigan held that where

a constitutional claim could have been raised

and adjudicated at trial and was not, it

could not be the basis of a collateral

attack of the conviction absent a showing of

ineffective assistance of counsel in failing

to raise the question at trial. It provided

no other ground for allowing the issue to be

raised by collateral attack. In dismissing

DiPaola's petition for habeas corpus, the

state judge denied him standing to raise the

issue on the strength of this case. Appendix

G (18a-20a). Notably, when that judge subse-

quently ruled on a different defendant's

motion to suppress based on similar grounds

as DiPaola had attempted to raise, he granted

the motion. (Commonwealth v. Flick, Cr. No.

23720. Order of Judge Thomas J. Middleton,

December 22, 1976).

6

of the rule in Slayton v. Parrigan, supra,

n. 2, considered the merits of DiPaola's

Fourth Amendment claim. Aside from the vio-

lation of privacy rights, the court found the

entry unreasonable because of the unnecessary

use of substantial force.

[T]he manner in which the arrest

was effected, namely, through a

forced entry (and it was a sub-

stantially forced entry; it wasn't

just pushing open a closed door;

it was a breaking of one door and

a breaking of the glass of another,

together with the original state-

ment that they were not police

officers), warrants the Court...

in applying the exclusionary rule.

This would hopefully deter this

sort of entry, which in my view,

constituted an unreasonable search

and seizure. (Appendix A, 2a-3a)

Based on the conclusion that the police mis-

conduct was "egregious", the court ruled the

search an unreasonable violation of DiPaola's

Fourth Amendment rights and granted his

petition. Appendix A (3a).

The state prison officials appealed to

the United States Court of Appeals for the

Fourth Circuit. On the day their opening

brief was filed, this Court decided Stone y.

Powell, 428 U.S. 465 (1976), restricting the

federal habeas corpus relief available to

state prisoners asserting Fourth Amendment

Claims. After the case was fully briefed,

the Court of Appeals vacated the District

Court's decision and remanded for considera-

tion in light of Stone vy. Powell. On remand

the District Court held that Stone v. Powell

now foreclosed DiPaola's claim. Appendix

C (5a-6a).

DiPaola appealed. After the filing of

supplemental briefs and oral argument, the

7

Court of Appeals found that although DiPaola

could not be blamed for failing to raise at

trial a claim of which he was "excusably

ignorant" at that time, he may have been

able to raise the claim in state court by

a motion for new trial based on newly dis-

covered evidence. Appendix E (l4a-15a).

The Court held that this mechanism was enough

to require application of the Stone v. Powell

rule of preclusion, notwithstanding Virginia's

rigid contemporaneous objection requirement,

and affirmed the denial of habeas corpus

relief. Appendix E (l4a-l5a). The court

did not address either in its initial decision

or in denying rehearing, the issues raised by

DiPaola of whether the rule in Stone v. Powell

applied in instances of flagrant police mis-

conduct (Supp. Brief at 15-17), nor whether

Stone v. Powell should apply retroactively

when the petitioner for good cause was unable

to have his claim fully adjudicated at trial

and on appeal in state court. (Brief for

Appellee at 8-22).

REASONS FOR GRANTING THE WRIT

In 1976, a Federal District Court granted

DiPaola's petition for habeas corpus after

finding the Fourth Amendment violation by the

police so egregious as to require application

of the exclusionary rule to deter them from

such conduct in the future. Appendix A (2a-

3a). On review, the Court of Appeals ruled

that the federal court should not even consider

this serious constitutional violation. The

court based this abrupt withdrawal of a pre-

existing federal remedy on the intervening

decision of this Court in Stone v. Powell. In

fact, Stone v. Powell did not mandate this

disposition, but left undecided the important

questions this case presents.

The Court should now decide whether

Fourth Amendment violations arising from bad

faith, egregious conduct by the police

involve a different balance than that struck

in Stone v. Powell. Second, the Court in the

Stone case withdrew federal habeas corpus

relief from state prisoners who had had

a “full and fair opportunity" to raise Fourth

Amendment claims at trial and on appeal, with-

out providing any guidance to determine what

would constitute a "full and fair opportunity".

The need for some definition is clear in

the face of the growing body of Court of

Appeals cases such as this one which have

filled the vacuum by depriving the phrase

of any meaning and finding opportunity

where, by any fair and reasonable standard,

there has either been none at all or at best

an imaginative and hypertechnical one not yet

recognized by any state court.

Finally, the Court should now consider

whether there is an exceptional class of

cases, in which the state courts have not

considered the merits of a substantial

Fourth Amendment claim and the absence of a

factual record precluded certiorari in this

Court, where retroactive application of the

rule in Stone violates due process.

I.

THE COURT SHOULD RESOLVE WHETHER

STONE V. POWELL BARS FEDERAL HABEAS

CORPUS RELIEF FOR FOURTH AMENDMENT

CLAIMS BASED ON EGREGIOUS, BAD

FAITH CONDUCT BY STATE POLICE OFFICERS.

The Fourth Amendment violation in this

case was no mere good faith blunder by a

well-intended constable. As the District

Court originally found when it considered

the merits, the police misconduct was an

egregious and wholly unreasonable violation

of the Fourth Amendment. Yet in the wake

of Stone v. Powell, neither the District

Court nor the Court of Appeals would consider

9

the nature of the violation, but felt

bound by that case to dismiss the peti-

tion.

The Court should answer the question

whether the rule in Stone v. Powell should

be extended rigidly FO™preclude relief in

cases of flagrant Fourth Amendment violations.

Both that case and its precurser, the concur-

ring opinion in Scheckloth v. Bustamonte,

412 U.S. 218 (1973), recognized a distinction

between flagrant Fourth Amendment violations

and the "grey twilight area where the law is

difficult for the court to apply, let alone

for the policeman on the beat to understand."3/

It is in the latter area, and not the former,

“where the deterrent function of the exclu-

sionary rule is least efficacious, and

where there is the least justification for

freeing a duly convicted defendant." Id.

This consideration lay at the heart of the

balancing test employed in Stone v. Powell,

which weighed "the utility of the exclu-

sionary rule against the costs of extending

it to collateral review of Fourth Amendment

claims." Stone v. Powell, 428 U.S. at 489.

The Court in Stone, however, had no occasion

to consider the application of that rule to

flagrant constitutional violations. In the

cases under review there, the violations were

the result of the good faith and reasonable,

though mistaken, belief by the police that

they were proceeding correctly. See id. at

471, 490-91. In that situation, this Court

found that exclusion would not serve a

deterrent purpose. The opinion did indicate,

however, that the courts may still be called

on to weight the nature of the police mis-

conduct in the balance. Id. at 482 and n. 17,

of Schneckloth vy. Bustamonte, 412 U.S.

Burger, C.J., concurring).

10

485 and n. 23, 490-91 and n. 29. See id.

at 499, 501 (Burger, C.J., concurring.) 4/

Before the decision in Stone, the

District Court in fact performed such a bal-

ancing test and ruled that the police conduct

was sufficiently egregious to require that the

purpose of the exclusionary rule to deter such

misconduct be given controlling weight

(Appendix A, 3a). But after Stone, the

District Court and the Court of Appeals

adopted a per se rule of preclusion that

entirely ignored the flagrant nature of the

misconduct; instead, the courts declined to

exercise habeas corpus jurisdiction on the

dubious assumption that the claim, hypothe-

tically, could have been raised by a post-

4/ The opinion in Stone v. Powell

expressed concern about the "disparity"

between the nature of the police "error" and

the ‘windfall accorded a guilty defendant."

Id. at 490. When, as here, the police con-

duct was intentional, flagrant, and malicious,

the disparity between that misconduct and the

defendant's is significantly less than the

disparity in the cases before the Court in

Stone vy. Powell. To apply invariably the

balance reached there to cases which do

not involve the chief factor in that balance--

the negligible deterrent effect of the ex-

clusionary rule on relatively innocent Fourth

Amendment breaches--entirely undercuts the

force of therationale employed in Stone.

Furthermore, the rule as applied in this case

can only encourage the state police and pro-

secution not to disclose facts that would

permit the defendant to raise a Fourth

Amendment claim at trial: If the facts do

not come out until after trial, the state

police can be reasonably certain that their

flagrant violation of the Fourth Amendment

will be rewarded and never subject to review

or redress. See Pulver v. Cunningham, 562

F.2d 198, 200-01 (and Cir. 1977).

11

trial motion for new trial in the state court.

Under this extension of Stone, the federal

courts are helpless to remedy a flagrant

fourth amendment violation if the state court

has considered the merits, but arbitrarily

denied relief, or,as in this case, if the

state court did not consider the merits at

all. The values inherent in the fourth amend-

ment are too important to be secured by so

delicate a thread.

This case, therefore, presents the

Opportunity to consider whether the balance

struck in Stone v. Powell automatically

should apply to close the door to federal

habeas corpus relief for intentional and

egregious fourth amendment violations.

Il.

THE COURT SHOULD PROVIDE EXPLICIT

GUIDANCE AS TO THE MEANING OF THE

REQUIREMENT OF "FULL AND FAIR OPPOR-

TUNITY" TO LITIGATE FOURTH AMENDMENT

CLAIMS IN STATE COURT.

The unreasonably expansive interpreta-

tion that the court of appeals lent the phrase

"full and fair opportunity" amply attests to

the need for a clearer explanation or inter-

pretation of that phrase by this Court.

The rule stated in Stone v. Powell was

that a prisoner "who previously has been

afforded the opportunity for full and fair

consideration of his search-and-seizure claim

at_ trial and on direct review" will not or-

dinarily be entitled to relitigate the claim

in a federal habeas corpus proceeding. 428

U.S. at 486 (emphasis added). 5/ In the two

5/ At the close of the decision, the

Court again emphasized that it was holding

"only that a federal court need not apply the

exclusionary rule on habeas (footnote cont.)

12

cases under review in Stone v. Powell, the

factual recordsfor the fourth amendment claims

were complete at the trial level and the legal

arguments for the claims had been fully aired

by the defense both at trial and on appeal.

Language throughout the opinion accordingly in-

dicated that the rule was intended to reach

claims that had received actual consideration

in the state courts. 6/

5/7 (cont.)

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."

Id. at 494 n. 37 (emphasis added).

6/ E.g., 428 U.S. at 489 (question is

whether state prisoner may in federal court

again invoke his claim); id. at 491 and n. 31

(costs of exclusionary rule outweigh its

benefits when claim has already been rejected

by "two or more tiers of state courts” and

when prisoner is seeking to have federal

court "redetermine" the issue); id. at 512

n. 10 (interpreting majority decision as

contemplating that state court "fully and

fairly adjudicated the claim") (Brennan,

Marshall, JJ. , dissenting). As noted by the

concurring judges in Gates v. Henderson, "The

federal courts that have been faced with

Fourth Amendment habeas claims after Stone

have all viewed the question before them as

whether, in the individual case, the state

courts had in fact meaningfully considered

the defendant's claim." 568 F.2d 830, 844

(2d Cir. 1977) (en banc) (Oakes, Smith,

Feinherg, concurring), cert. denied, U.S.

_- 54 L.Ed. 2d 787 (19787 x

13

This case presents a sharp contrast from

the cases under review in Stone v. Powell.

There was no opportunity here for consideration

of the illegal entry claim at trial because

the petitioner and his counsel were "excusa-

bly ignorant" of the facts giving rise to

it. Appendix E (15a). Nor was the claim

reached on direct review, because the facts

were not in the record on appeal. Appendix

G (18a-19a). 7/ The petitioner thus did not

have an opportunity fully to litigate the

claim “at trial and on direct review.” 428

U.S. at 486, 494 n. 37. 8/

The court of appeals erroneously found

that the full and fair opportunity test could

be met because a motion for new trial conceiv-

ably could have been filed. In Virginia,

however, neither a motion for new trial nor

any other post-trial procedure offered a

full opportunity to air DiPaola's fourth amend-

ment suppression claim, notwithstanding the

court of appeals' hopeful assurances. Further-

more, even if the objection were not properly

raised in the state courts, the full and fair

opportunity test would appear to require

consideration whether there was good cause

for the failure and actual prejudice to

the prisoner. See Stone v. Powell, at 478

7/ See, e.g., Holbrook v. Commonwealth,

165 Va. 700, 702, 181, S.E. 353 (1935)

(appellate court is limited to consideration

of errors apparent on the face of the evidence

in the record).

8/ See O'Berry v. Wainwright, 546 F.2d

1204, 1211, 1213 (Sth Cir.), cert. denied, 433

U.S. 911 (1977). (Where there are unre-

solved facts, full and fair opportunity re-

quires consideration by two tiers of state

courts, that is, consideration by the fact-

finding court and "at least the availability

of meaningful appellate review by a higher

state court.").

14

and n. ll. The Court recently has held that

claims which the state court has "declined

to pass on because not presented in the

manner prescribed by its procedural rules” are

barred on federal habeas only in the absence

of a "showing of cause for the noncompliance

and some showing of actual prejudice resulting

from the alleged constitutional violation."

Wainwright v. Sykes, 433 U.S. 72, 82, 84

(1977); Francis v. Henderson, 425 U+S. 536

(1976); Gates v. Henderson, supra, 568 F.2d

at 842-43 (Oakes, C.J., Smith, Feinberg con-

curring). See Rule 12(f), F.R. Crim. P. The

petitioner did not raise his claim at trial for

good cause--he was understandably unaware

of the facts. He suffered actual prejudice

"because, undoubtedly, the evidence seized

played an important part in the conviction

obtained by the State." Appendix A (3a).

Although the petitioner has strenuously

sought state court consideration of his claim

by filing an habeas corpus petition prior to

seeking federal relief, he did not file a

motion for new trial. There was good reason

for not filing that motion since it is not an

appropriate vehicle for presenting a claim

that does not go to the merits, that is, to

the question of guilt or innocence, but to a

collateral issue. See e.g., Lewis v. Common-

wealth, 209 Va. 602, 608-09, 166 S.E.2d 248

; Leigh v. Commonwealth, 192 Va. 583,

597, 66 S.E. 586 (1951); United States v.

Williams, 415 F.2d 232, 233 (4th Cir. 1969).

Supp. Br. for Appellant at 9-10. We have been

unable to find any Virginia case where newly

discovered facts supporting a claim for ex-

clusion of the evidence based on violation of

the fourth amendment, as opposed to a defect

in the probative value of the evidence, was

entertained by the court on a motion for

new trial.

15

Even if a fourth amendment claim could

be raised for the first time in such a

motion, it is still open to question whether

that constitutes a "full opportunity." Motions

for new trial are looked upon with disfavor

and granted rarely, United States v. Garner,

529 F.2d 962, 969 (6th Cir.), cert. denied,

429 U.S. 850 (1976). E.g., Murray v. Smithson,

187 Va. 759, 765, 48 S.E.2d 239 (1948).

Any appeal of the denial of this motion is

subject only to very narrow review. See

Holmes v. Commonwealth, 156 Va. 963, 969, 157

EB. ; Cardwell v. Norfolk &

W.R. Co., 114 Va. 500, 506-08, 77 S.E. 612

(I91I3).

Finally, under the contemporaneous

objection rule employed by the Virginia Supreme

Court, it is apparent that neither this nor

any other procedure would have afforded

DiPaola a full opportunity to raise his

fourth amendment claim. See Slayton v.

Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974),

cert. denied, 419 U.S. 1108 (1975). DiPaola's

Brief at 19-20 n. 11, Supp. Br. at 10,14-15.

The force of this rule was demonstrated by

the state court's refusal to consider the

merits of the claim when DiPaola petitioned

for habeas corpus. Appendix G (18a-20a).

The court of appeals plainly should not have

refused to consider DiPaola's claim under

these circumstances:

If the state provided no

corrective procedures at all

to redress Fourth Amendment

violations, federal habeas corpus

a ae available. United States

ex rel. Petillo v. New Jerse

418 F. Supp. 386 WN. 18%)

rev'd 562 F.2d 903 (3rd Cir. 1977).

It may further be that even where

the state provides the process

but in fact the defendant is precluded

16 17

from utilizing it by reason of To apply a literal test of whether there

an unconscionable breakdown in was any opportunity to have a hearing in these

that process, the federal intru- circumstances is unwarranted and unjust.

sion may still be warranted. See When, as here, there was no full hearing,

Frank v. Mangum, 237 U.S. 309 ... and the question was only one of opportunity,

; that test should be applied prospectively only.

Gates v. Henderson, supra, 568 F.2d at 840. [J] udge-made rules of law are hard

The Court should supply a more exacting facts on which people must rely

and meaningful interpretation to the phrase + in making decisions and in shaping

"full and fair opportunity." As this case their conduct. This fact of legal

demonstrates, that qualification in Stone life underpins our modern decisions

v. Powell rapidly is losing all meaning. recognizing a doctrine of non-

retroactivity.

Eide

Lemon v. Kurtzman, 411 U.S. 192, 199 (1973).

See also, Linkletter v. Walker, 381 U.S. 618,

THE RETROACTIVE APPLICATION OF STONE -29 (1965); Jame

V. POWELL WORKS AN UNNECESSARY AND nigh 213, 221) (LSEIT Hoe ee es seateee 70°

* . fd .

SERIOUS INJUSTICE ON PETITIONERS

WHOSE FOURTH AMENDMENT CLAIMS WERE At the time DiPaola determined the

NEVER HEARD ON THE MERITS IN STATE procedural course to follow, there logically

COURT AND WHO HAD BEEN GRANTED would have been no reason to move for a new

FEDERAL HABEAS CORPUS RELIEF AT THE trial. Under the then-existing standards,

TIME THAT STONE WAS DECIDED. even his later, unsuccessful efforts to obtain

state habeas corpus relief were not required

In Stone v. Powell, the Court concluded to exhaust state remedies, and he was held

that its newly announced limitation on federal to be eligible for federal relief. Appendix

habeas corpus relief could be applied retro- A (la). See generally Fay v. Noia, 372 U.S.

actively, because the petitioners there 391, 419-420, 438-39 (1963). The court of

could have had full federal review of their appeals now has announced that a motion for

claims by filing petitions for certiorari new trial in state court was an available --

prior to seeking federal habeas corpus and therefore the only--avenue for relief; but,

relief. 428 U.S. at 495 n. 38. The fourth it could not be followed because the twenty-one

amendment violations had been raised at trial day time limit for filing that motion had

and fully adjudicated in the state courts; passed nearly two years earlier.

the Court would have had all the facts before ;

The Court should consider whether it is

it on certiorari. not an unnecessary and grave injustice to deny

That rationale has no force here. Unlike relief to petitioners like DiPaola, whose

the petitioners in Stone, the petitioner's ? fourth amendment claims were not litigated in

trial and appeal record here didnot contain state court and whose irrevocable procedural

the facts and arguments supporting his forcible choices were made, and whose federal habeas

entry claim (Appendix G, 18a-19a), and it corpus petitions were filed, before Stone yv.

could not have been raised for the first time Powell. These people had no reason or

by certiorari. Opportunity to follow the novel state procedures

18

that the federal courts have newly discovered

in the wake of Stone v. Powell.

CONCLUSION

For the foregoing reasons, petitioner

urges that this Court issue a Writ of Certiorari

to review the court of appeals decision,

Respectfully submitted,

JOHN KENNETH ZWERLING

ZWERLING & SHAPIRO

108 North Columbus Street

Post Office Box 383

Alexandria, Virginia 22313

(703) 836-5551

Attorney for Petitioner

October, 1978

APPENDIX

4

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

RONALD AUGUSTUS DiPAOLA, )

)

Petitioner, )

)

Vv. ) CIVIL ACTION

) NO. 75-858-AM

WALTER RIDDLE, et al., )

Respondents.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

I am not going to require that the

petitioner exhaust further his State

remedies, even though technically this

issue has never been before the Supreme

Court of Virginia. As I read Parrigan, and

it's a disturbing decision, because -- well,

it's a disturbing decision. I had better

leave it at that.

The severity of the punishment for this

offense concerns me, but it doesn't, Mr.

Zwerling, in my mind, amount to cruel and

unusual punishment, and I reject that ground

for habeas corpus.

The Commonwealth's right to insist on

a jury trial has been upheld, as counsel for

petitioner recognized. Those decisions

which have upheld it have qualified their

opinion by saying that this is not to say

that there may not be circumstances under

which the actions of the Commonwealth or the

Commonwealth's Attorney or the prosecuting

attorney are so ignoble, and his motives

such, that it would warrant a declaration

that such refusal was a denial of constitu-

i

2a 3a

tional rights to petitioner. However, I my view constituted an unreasonable search

don't believe, on this record, I can conclude and seizure.

that the Commonwealth's Attorney's actions

are sufficiently ignoble to warrant the grant- The causal connection about which the

ing of habeas relief. Attorney General's office argues, seems

to me, is here; but I'm not sure that a

The search and seizure question, however, complete causal connection is necessary to

is another problem. The right guaranteed bring into play the exclusionary rule for

by the Fourth Amendment of the people to be ‘ its prophylactic effect.

secure against unreasonable searches and

seizures, of course, is grounded in large I find that the manner of entry, egre-

part on an expectation of privacy. But it's gious as it was, vitiated what would otherwise

also, it seems to me, directed to the sort be a lawful procedure. I, therefore, find

of entry here that can be found to be and that the search was unreasonable and viola-

which the Court concludes, is an unreasonable tive of the Fourth Amendment; and the writ

search. will issue, because, undoubtedly, the evi-

dence seized played an important part in

‘There was here no evidence that the the conviction obtained by the State.

forced entry was required because of a desire

not to reveal the identity of Colavita, The writ will issue, and the defendant

although his arrest might warrant the infer- will stand, or the petitioner here, will

ence that that was a desire. stand released and discharged unless within

sixty days the Commonwealth elects to retry

There was no evidence that the entering him.

officers were concerned about evidence being

destroyed. There was no evidence here that The foregoing (being a transcript of

the lack of announcement or a forced entry the decision as announced from the bench),

was required because to do otherwise would is adopted as the Court's Findings of Fact

place the officer in danger, or that he was and Conclusions of Law.

in danger. ,

/s/ Albert V. Bryan, Jr.

There was no evidence that a forced entry United States District Judge

was necessary to keep an arrest from being

frustrated. And the manner in which the arrest Alexandria, Virginia

was effected, namely, through a forced entry : January 28, 1976

(and it was a substantially forced entry; it

wasn't just pushing open a closed door; it

was a breaking in of one door and a breaking

of the glass of another, together with the ?

original statement that they were not police

officers), warrants the Court, it seems to me,

in applying the exclusionary rule. This would

hopefully deter this sort of entry, which in

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1352

RONALD AUGUSTUS DiPAOLA,

Appellee,

Vv.

WALTER RIDDLE, Superintendent,

Virginia State Penitentiary

JAMES D. SWINSON, Sheriff,

Fairfax County

WILLIAM J. POWELL, Sheriff,

Sussex County,

Appellants.

ORDER

It appearing that subsequent to the de-

cision of the district Court the Supreme

Court of the United States decided Stone v.

Powell, U.S. ___- (July 6, 1976), which

may be dispositive of the instant case; now

therefore it is, with the concurrence of

Judge Craven and Judge Butzner,

ORDERED that the judgment in the instant

case be, and it is, vacated and the case is

remanded to the district court for reconsid-

eration in the light of Stone v. Powell.

Harrison L. Winter i.

United States Circuit Judge

a

5a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

RONALD AUGUSTUS DiPAOLA,

Petitioner,

)

)

)

Vv. ) CIVIL ACTION

) NO. 75-858-AM

WALTER RIDDLE, et al., )

Respondent. )

ORDER

This case is here on the remand of the

United States Court of Appeals for the

Fourth Circuit in light of Stone v. Powell,

U.S. __—s_- (July 6, 1976). The decision

of this Court on January 28, 1976 was predi-

cated solely on the petitioner's Fourth

Amendment claims. This record shows that

the State of Virginia, in accordance with

Stone, did provide petitioner with an oppor-

tunity to fully and fairly litigate his

Fourth Amendment claims, even though the

arguments in support of those claims before

the state court were different from those

presented here.

Accordingly, the Court of Appeals having

already vacated this Court's January 28, 1976

judgment, it is

ORDERED that the Petition for Writ of

Habeas Corpus be denied; the order of this

Court letting the petitioner to bail be

revoked; and the petitioner surrender him-

self to the Virginia authorities forthwith

for the serving of the sentence imposed by

the Circuit Court of Fairfax County, Virginia.

Copies hereof shall be mailed to

counsel.

6a 7a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

January 5th, 1977 RONALD AUGUSTUS DiPAOLA,

Petitioner,

bi ) CIVIL ACTION

WALTER RIDDLE, et al., ) NO. 75-858-AM

Respondents. )

MEMORANDUM OPINION AND ORDER

The petitioner has filed a “Motion to

Supplement Record and Reconsider Court's

Order of 5 January 1977." That order ruled

that, in accordance with Stone v. Powell,

__ U.S. _, 44 U.S.L.W. 5313 (July 6, 1976),

the State of Virginia had provided petitioner

with an opportunity to fully and fairly

litigate his FourthAmendment claims.

Whether such an opportunity was pro-

vided is the issue raised by the Motion to

Reconsider. Petitioner concedes that

. Fourth Amendment claims were raised by him

in the state court proceedings; however he

says that his "no knock entry" claim was

not raised or considered because neither

he nor his counsel was aware of the manner

of entry until after his trial was concluded.

In support of the Motion to Reconsider,

petitioner seeks to supplement the record

with an affidavit from his former retained

counsel which states counsel was not aware

until after the trial of the manner of entry;

| that this information was brought to his

attention by his client Scheps 1/; that

1/ The record reveals that Scheps was

on the same floor as the entry [footnote cont.]

8a

the manner of entry was raised in petitioner's

direct appeal to the Virginia Supreme Court

following his conviction; and that "Brady”

material was requested by counsel prior to

trial. The motion to supplement the record

will be granted and the Court, as indicated,

has considered the affidavit.

The Court also has considered the tran-

script of the preliminary hearing of March

13, 1974. The only references to the manner

of entry contained in that transcript are

the officers' testimony as to a "raid"

and that they would "hit" the residence.

These are not significant, except perhaps

when considered with other evidence which

might have alerted counsel as to the type of

entry effected.

Petitioner attempted to raise the "no

knock entry" claim in a state habeas corpus

proceeding, but this was rejected on the

basis of Slayton v. Parrigan, 215 Va. 27,

205 S.E. 2d 680 (1974).

Based on the following considerations,

the Court concludes that petitioner has had

the opportunity referred to in Stone to raise

his "no knock entry" Fourth Amendment claim:

(1) It is inconceivable that petitioner,

even though downstairs from the floor where

the entry occurred, was not aware of the man-

ner of entry if, as he asserted and as the

way at the time of the police entry. He had

been charged together with petitioner orig-

inally, but the charge against him was "nolle

pros'd." at the petitioner's preliminary

hearing. It appears from counsel's affidavit

that he was charged again and pled guilty.

F

4

e

4

e

i

‘

-.

9a

Court found, the entry was so egregious

(breaking in of one door and breaking of

glass). The record shows that the house

was quiet until the entry.

(2) Even though his other client in

the case, Scheps, made counsel aware of the

circumstances surrounding the entry shortly

after the trial and before sentencing, no

motion for a new trial was made either on

the ground of after-discovered evidence or

on the ground of suppression of evidence

favorable to the accused upcn request.

Brady v. Maryland, 373 U.S. 83, 87 (1963);

Stover v. Commonwealth, 211 Va. 789, 180 S.E.

- . A request was made

here. ‘The implications of such circumstances

were not new even then. Ker v. California,

374 U.S. 23, 37 (1963). Faced with the issue

upon a proper record, as it subsequently was

in Johnson v. Commonwealth, 213 Va. 102, 189

S.E.2d 678 (1972), the Virginia Supreme Court

might well have concluded that there were no

"exigencies of the circumstances" warranting

the manner of entry present here. Id. at 680.

The Motion to Reconsider the Court's

Order of January 5, 1977 is denied; and the

latter is ordered into execution forthwith.

/s/ Albert V. Bryan, Jr.

United States District Judge

10a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1293

Ronald Augustus DiPaola,

Appellant,

versus

Walter Riddle, Superintendent,

Virginia State Penitentiary

James D. Swinson, Sheriff,

Fairfax County, William J. Powell,

Sheriff, Sussex County,

Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at

Alexandria. Albert V. Bryan, Jr., District

Judge.

Argued: October 6, 1977

Decided: August 21, 1978

Before HAYNSWORTH, Chief Judge, FIELD, Senior

Circuit Judge, and THOMSEN*, Senior District

Judge

* Senior District Judge of the District of

haxyland, sitting by designation

Speen aneeaenns,

P

lla

Jonn Kenneth Zwerling (J. Flowers Mark on

brief) for Appellant; Jerry P. Slonaker,

Assistant Attorney General (Anthony F. Troy,

Attorney General of Virginia on brief) for

Appellees.

HAYNSWORTH, Chief Judge:

Prior to and during the trial in the

state court for the possession of marijuana

with the intention of distributing it, DiPaola

sought the suppression on constitutional

grounds of marijuana that had been seized.

At that time, however, he did not object to

the search on the ground that there had been

a "no knock" entry of the house and no an-~

nouncement that the ununiformed intruders were

policemen. DiPaola had been in the basement

of the house, and his counsel represented

that he knew nothing of the manner in which

entry was effected. One of the persons

arrested, however, was on the first floor of

the house and knew of the "no knock" entry.

He was represented by the same lawyers who

represented DiPaola, and they reported that

they did not learn of the nature of the entry

from their other client until shortly after

a jury found DiPaola guilty, though this was

several months before the court imposed

its sentence upon DiPaola. The question

is whether DiPaola had an opportunity to

fully litigate his "no knock" entry claim

in the courts of Virginia so as to foreclose

his assertion of that claim in a federal

habeas corpus proceeding under the rule of

Stone v. Powell, 428 U.S. 476 (1976).

I.

Acting upon an informant's tip, a

regular, full time, but undercover, police-

man went to a house in Fairfax County,

Virginia posing as a prospective purchaser

of marijuana. His informant and DiPaola

l2a

were in the yard. DiPaola invited him into

the house, and the three went down into a

basement room where there were two others.

They negotiated for the purchase of twenty

pounds of marijuana, and the box was given

to Colavita, the policeman, for inspection.

After the negotiations were complete, on a

Signal from Colavita, several policemen in

civilian clothing and with drawn guns entered

the house. The front door was forced open.

A glass pane in the kitchen door was broken

so that it might be unlocked from the inside.

Perhaps jokingly, one of the intruders

informed the people on the first floor of the

house, "This isn't a bust. This is just a

big rip-off."

One of the intruders, immediately after

his entry into the house, went down into the

basement room. Another soon followed. They

identified themselves as policemen, and they

arrested DiPaola and his two companions, and

at least pretended to arrest Colavita, the

policeman who had been invited in as the pur-

chaser of the marijuana. They returned

upstairs with the four persons placed under

arrest and the marijuana, and then disclosed

to the occupants of the first floor their

identity as policemen.

Before and during DiPaola's trial, his

lawyer sought the suppression of the marijuana,

contending that there was no probable cause

for a search by the policemen who participated

in the forceful entry, and that there was

no warrant.

Only one of the persons on the first floor

of the house at the time of the forced entry

was arrested. That one, Scheps, was represented

by the same lawyers who represented DiPaola.

Scheps, of course, knew all about the forced

entry, but the lawyers later filed affidavits

that Scheps did not tell them about the manner

l3a

in which the intruding policemen gained their

entrance until they were preparing for Scheps'

trial, shortly after the jury had found DiPaola

guilty. During DiPaola's trial, they say,

they were unaware of the factual basis of

the claim that is now asserted in DiPaola's

behalf by other lawyers.

Il.

When this federal habees claim was

first asserted, the district court concluded

that the writ should issue. The statute,

18 U.S.C.A § 3109, requiring federal law

enforcement officers to knock and to identify

themselves, had no application to the conduct

of these state policemen, but the district

court thought that the breaking of the doors

and the absence of any immediate announce-

ment was so egregious that it amounted to a

violation of the Fourth Amendment.1/ The

Commonwealth appealed, and, thereafter, the

Supreme Court announced its decision in Stone

v. Powell. We remanded for reconsideration

in light of Stone v. Powell. The district

court then held that the claim was foreclosed

by that opinion of the Supreme Court, and

DiPaola then brought the case back to us.

Itt.

Stone v. Powell's rule of preclusion is

not dependent upon a finding that the conten-

1/7 See, however, United States v.

Bradley, 455 F.2d 1181 (1 Cir.); United States

v. Glassel, 488 F.2d 143 (9 Cir.). Since

Colavita had been invited into the house, and

had obtained possession of the marijuana as its

purchaser, those cases suggest that suppression

is not required under § 3109 by reason of a

subsequent unlawful entry by other policemen.

l4a

tion was asserted and fully litigated in the

state courts. It is enough that the state

provided the mechanism and an opportunity

for such full and fair litigation. See, e.g.,

Doleman v. Muncy, F.2d __—s (4th Cir.)

(77-2150, filed June 29, 1978). Our task then

is to determine whether Virginia law provided

DiPaola an opportunity for the litigation of

his claim, notwithstanding the lawyer's ig-

norance of its factual basis before the jury

returned its verdict, in light of Virginia's

procedural rule, stated in Slayton v. Parrigan,

215 Va. 27,205 S.E.2d 680 ( 4), that eviden-

tiary rulings are not open to subsequent re-

view in the absence of a contemporaneous

objection. We think there was such an oppor-

tunity.

DiPaola was tried in June 1974. Accord-

ing to his trial lawyers they did not learn

from Scheps of the nature of the entry by

the several policemen until later that month

or early in July. The judge, however, did not

sentence DiPaola until October or November.

The record indicates that the trial lawyers

did file some post-trial motions, butthey

did not seek an order to set aside the

verdict or to award a new trial upon the ground

of after-discovered evidence providing them

with a factual basis to strike the fruits

of the search from the evidence. Under

Virginia rule 3A:22 provision is made for

motions for new trials and to set aside

a verdict of guilty if made within twenty-

one days after the entry of the final order.

Under the rule the motion could have been

made within twenty-one days after the imposi-

tion of sentence in October or November. Had

such a motion been made, we can find nothing

in Virginia law which would suggest that an

evidentiary hearing and a ruling on the const-

itutional claim would not have been appropriate

and required.

15a

Slayton v. Parrigan, on its face, is a

perfectly acceptable rule. The trial judge

should have the first opportunity to rule

upon objections to evidence, and his ruling

should be made at the time the evidence is

offered or even in advance of trial. Or-

dinarily, a party should not be permitted to

stand silently by and later to contest the

admissibility of crucial evidence only after

the fact finding has gone against him. But

surely Slayton v. Parrigan does not require

defense counsel to speak when he is excusably

ignorant of the factual basis of objection

later asserted. The rule of Slayton v.

Parrigan requires a trial lawyer to assert

his objections in a time fashion, but con-

siderations of timeliness do not require a

recitation of facts which are unknown to

lawyer and client and they are not chargeable

by law with knowledge of them. 2/ Slayton v.

Parrigan is an expression of a not unreasonable

procedural rule designed to promote orderli-

ness. It need not be distorted into an

engine of injustice, foreclosing claims which,

for good reasons, could not have been asserted

earlier.

It is possible that DiPaola may have a

claim for habeas relief in the state courts on

the ground of inadequate representation by

his trial lawyers when they failed to file a

motion for a new trial or a motion to set

aside the verdict. That is only speculative,

2/ The district judge thought it in-

conceivable that DiPaola did not know of the

"no knock" entry. Though he was in a basement

room, he thoughtthat DiPaola and the others

with him would have heard of the commotion.

There has been no inquiry as to that, however.

We do not know what, if anything, the police-

man in the basement, Colavita, heard.

l6éa

however, for the lawyers may have felt it

not worth the candle. The subsequent unlawful

entry by other policemen would not affect the

legality of Colavita's presence. There was

no factual basis for a motion to strike his

testimony, and they may have reasonably

thought that a motion to strike the physical

marijuana exhibit, even if successful,

would be held not to warrant a new trial.

The questions which would arise if such a

claim were asserted, however, are not now

before us, and what we have said should not be

taken as an expression of opinion upon them.

AFFIRMED.

17a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1293

Ronald Augustus DiPaola,

Appellant,

versus

Walter Riddle, Superintendent,

Virginia State Penitentiary,

et al.,

Appellees.

ORDER

Upon consideration of the petition for

rehearing, no request for a poll of the court

being made on the suggestion for rehearing

en banc, and with the concurrence of Judge

Field and Judge Thomsen,

IT IS ORDERED that the petition be, and

the same is hereby, denied.

FOR THE COURT:

ment F. Haynsworth, Jr.

Chief Judge, Saree eireatt

September 29, 1978

18a

APPENDIX G

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA

Fairfax County Prince William County

Fairfax City Falls Church City

Fairfax County Courthouse

Fairfax, Virginia 22030

Sinclair

Jennings

Keith

Plummer

Morris

Thornton, Jr.

Millsap

Cacheris

Middleton November 25, 1975

Judges

John K. Zwerling, Esq.

108 N. Columbus Street

Alexandria, Virginia 22313

J. Flowers Mark, Esq.

117 N. Fairfax Street

Alexandria, Virginia 22314

E. William Fox, Jr., Esq.

Assistant Commonwealth's Attorney

4000 Chain Bridge Road

Fairfax, Virginia 22030

RE: Ronald Augustus DiPaola v. James D.

Swinson, Sheriff, et al., - At Law .

No. 35143

Gentlemen:

Recently the above-captioned matter was

heard by this Court on a Petition for Writ of

Habeas Corpus filed by Mr. DiPaola. Arguments

on behalf of the Petitioner and the Common-

19a

wealth were made to the Court.

The primary argument presented to support

the Petition for the Writ of Habeas Corpus is

set forth in Paragraph No. 14-A, of the

Petition. This Court has reviewed the "no

knock" cases presented in argument by respec-

tive counsel and other cases which it deemed

relevant.

A search of the transcript has revealed

that the "no knock" argument was not raised

in defense of the Petitioner either at his

trial or on appeal from that conviction.

It appears that neither counsel for the

Petitioner nor counsel for the Commonwealth

cited to the Court the cases of Slayton v.

Parrigan, 215 VA 27, and Superintendent of

the Virginia State Farm v. Wacken, 215 VA 251.

These cases stand for the proposition that

a petitioner lacks standing in habeas corpus

proceedings to raise a question concerning

admissibility of evidence when he had full

opportunity to raise the question in his

trial and upon appeal. As stated in Slayton

v. Parrigan at page 30:

The trial and appellate procedures in

Virginia are adequate in meeting pro-

cedural requirements to adjudicate

State and Federal constitutional rights

and to supply a suitable record for

possible habeas corpus review. A pri-

soner is not entitled to use habeas

corpus to circumvent the trial and

appellate processes for an inquiry into

an alleged non-jurisdictional defect

of a judgment of conviction.

The grounds stated in Paragraph No. 14-B

of the Petition for a Writ of Habeas Corpus

were considered by the trial court at the

time of trial. It is the opinion of this

court that the issue presented by Paragraph

20a

14-B was correctly decided upon the original

trial of the case.

Assuming that evidence was admitted in

the trial Court which could have been sup-

pressed because it was obtained in violation

of the "no knock" rule, it is the belief of

this Court that the Petitioner lacks standing

to raise that question on habeas corpus at

this time. Therefore, the Petition for a

Writ of Habeas Corpus is denied.

Very truly yours,

/s/ Thomas J. Middleton

Thomas J. Middleton

TJM: jla

2la

APPENDIX H

FOURTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrant shall

issue, but upon probable cause, supported by

oath or affirmation, and particularly describ-

ing the place to be searched, and the persons

or things to be seized.

22a

APPENDIX I

§ 2254. State custody; remedies in

Federal courts

(a) The Supreme Court, a Justice

thereof, a circuit judge, or a district

court shall entertain an application for a

writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a

State court only on the ground that he is

in custody in violation of the Constitution

or laws or treaties of the United States.

(b) An application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a State

court shall not be granted unless it appears

that the applicant has exhausted the remedies

available in the courts of the State, or

that there is either an absence of available

State corrective process or the existence of

circumstances rendering such process inef-

fective to protect the rights of the prisoner.

(c) An applicant shall not be deemed

to have exhausted the remedies available in

the courts of the State, within the meaning

of this section, if he has the right under

the law of the State to raise, by any avail-

able procedure, the question presented.

(d) In any proceeding instituted in a

Federal court by an application for a writ

of habeas corpus by a person in custody

pursuant to the judgment of a State court,

a determination after a hearing on the merits

of a factual issue, made by a State court of

competent jurisdiction in a proceeding to

which the applicant for the writ and the

State or an officer or agent thereof were

parties, evidenced by a written finding,

written opinion, or other reliable and

adequate written indicia, shall be presumed

to be correct, unless the applicant shall

establish or it shall otherwise appear, or

the respondent shall admit --

23a

(1) that the merits of the factual

dispute were not resolved in the State court

hearing;

(2) that the factfinding procedure

employed by the State court was not adequate

to afford a full and fair hearing;

(3) that the material facts were

not adequately developed at the State court

hearing;

(4) that the State court lacked

jurisdiction of the subject matter or

over the person of the applicant in the

State court proceeding;

(5) that the applicant was an

indigent and the State court, in deprivation

of his constitutional right, failed to

appoint counsel to represent him in the

State court proceeding;

(6) that the applicant did not

receive a full, fair, and adequate hearing

in the State court proceeding; or

(7) that the applicant was other-

wise denied due process of law in the State

court proceeding;

(8) or unless that part of the

record of the State court proceeding in

which the determination of such factual

issue was made, pertinent to a determination

of the sufficiency of the evidence to support

such factual determination, is produced as

provided for hereinafter, and the Federal

court on a consideration of such part of the

record as a whole concludes that such factual

determination is not fairly supported by the

record.

And in an evidentiary hearing in the pro-

ceeding in the Federal court, when due proof

of such factual determination has been made,

unless the existence of one or more of the

24a

circumstances respectively set forth in

paragraphs numbered (1) to (7), inclusive,

is shown by the applicant, otherwise appears,

or is admitted by the respondent, or unless

the court concludes pursuant to the pro-

visions of paragraph numbered (8) that the

record in the State court proceeding, con-

sidered as a whole, does not fairly support

such factual determination, the burden shall

rest upon the applicant to establish by

convincing evidence that the factual

determination by the State court was erroneous.

(e) If the applicant challenges the

sufficiency of the evidence adduced in such

State court proceeding to support the State

court's determination of a factual issue

made therein, the applicant, if able, shall

produce that part of the record pertinent

to a determination of the sufficiency of

the evidence to support such determination.

If the applicant, because of indigency or

other reason is unable to produce such part

of the record, then the State shall pro-

duce such part of the record and the Federal

court shall direct the State to do so by

order directed to an appropriate State offi-

cial. If the State cannot provide such per-

tinent part of the record, then the court

shall determine under the existing facts

and circumstances what weight shall be

given to the State court's factual deter-

mination,

(f) A copy of the official records of

the State court, duly certified by the clerk

of such court to be a true and correct copy

of a finding, judicial opinion, or other

reliable written indicia showing such a

factual determination by the State court

shall be admissible in the Federal court

proceeding.

25a

APPENDIX J

Rule 3A:12, Pleadings and Motions

Before Trial; Defenses and Objec-

tions; Notice of Insanity Defense.

(a) Pleadings and Motions. Pleadings in

a criminal proceeding shail be the indictment,

information, warrant or summons on which the

accused is to be tried, and the plea of not

guilty, guilty or nolo contendere. Defenses

and objections made before trial that hereto~

fore could have been made by other pleas

or by demurrers and motions to quash shall

be made only by motion to dismiss or to grant

appropriate relief, as provided in these

Rules.

(b) Notice of Defense of Insanity or

Feeblemindedness. If an accused proposes to

introduce psychiatric evidence that he was

insane or feebleminded at the time of the

alleged commission of the offense charged, he

‘shall, at least 10 days before the day

fixed for trial, serve a written notice of

his intention to introduce such evidence.

If an accused who failed to serve such notice

presents psychiatric evidence at his trial

as a defense, the Commonwealth shall have

the right to a continuance for a reasonable

period of time.

(c) The Motion Raising Defenses and

Objections.

(1) Defenses and Objections That

Must Be Raised Before Trial. -- Defenses

and objections based on defects in the

institution of theprosecution or in the

written charge upon which the accused is to

be tried, other than that it fails to

show jurisdiction in the court or to charge

an offense, must be raised by motion made

within the time prescribed by paragraph

(d) of this rule. The motion shall include

all such defenses and objections then

available to the accused, Failure to

present any such defense or objection as

26a

herein provided shall constitute a waiver

thereof. Lack of jurisdiction or the fail-

ure of the written charge upon which the

accused is to be tried to state an offense

shall be noticed by the court at any time

during the pendency of the proceeding.

(2) Defenses and Objections That

May Be Raised Before Trial. -- In addition

to the defenses and objections specified

in subparagraph(c) (1) of this rule, any

defense or objection that is capable of

determination without the trial of the

general issue may be raised by motion before

trial. Failure to present any such defense

or objection before the jury returns a

verdict or the court finds the defendant

guilty shall constitute a waiver thereof.

(3) Form of Motion. -- Any motion

made before trial shall be in writing if

made in a court of record, unless the court

for good cause shown permits an oral motion.

A motion shall state with particularity J

the ground or grounds on which it is based,

(4) Hearing on Motion, -- A motion

before trial raising defenses or objections

shall be determined before the trial unless

the court orders that it be deferred for

determination at the trial of the general

issue. An issue of fact shall be heard and

determined by the court, unless a jury trial

is required by constitution or statute.

(5) Effect of Determination. -- If

a motion is determined adversely to the

accused, his plea shall stand or he may

plead over or, if the accused has not

previously pleaded, he shall be permitted

to plead. The motion need not be renewed

if the accused properly saves the point for

the purpose of appeal when the court

first determines the motion.

27a

(ad) Time of Filing Notice or Making

Motion. A Motion referred to in subpara-

graph (c)(1) shall be filed or made before

a plea is entered and, in a court of record,

at least 7 days before the day fixed for

trial.

(e) Relief from Waiver. For good cause

shown the court may grant relief from any

waiver provided for in this rule.

28a

APPENDIX K

Rule 3A:22. Motion to Strike or to

Set Aside Verdict; Judgment of Acquittal

or New Trial.

(a) Motion to Strike Evidence. After

the Commonwealth has rested its case or at

the conclusion of all the evidence, the court

on motion of the accused may strike the Com-

monwealth's evidence if the evidence is

insufficient as a matter of law to sustain

a conviction. If the court overrules a

motion to strike the evidence and there is a

hung jury, the accused may renew the motion

within the time specified in Rule 1:11 and

the court may take the action authorized by

that rule,

(b) Motion to Set Aside Verdict. If

the jury returns-a verdict of guilty, the

court may, on motion of the accused made

not later than 21 days after entry of a

final order, set aside the verdict for

error committed during the trial or if the

evidence is insufficient as a matter of law

to sustain a conviction,

(c) Judgment of Acquittal or New Trial,

The court shall enter a judgment of acquittal

if it strikes the evidence or sets aside

the verdict because the evidence is insuffic-

ient as a matter of law to sustain a convic-

tion. The court shall grant a new trial if

it sets aside the verdict for any other

reason.