Gates v. Henderson Court Opinion

    IS ttT E D  STATES COURT OF APPEALS 

F ob, t h e  S econd C ibcuit

No. 361—September Term, 1976.

(Argued October 19, 1976 Decided January  12, 1977.) 

Docket No. 76-2065

(Submitted April 18, 1977 Decided August 19, 1977.)

Abthtjk R ichard Gates,

Petitioner-Appellant,
—-against—

R obert J. H enderson , Superintendent, Auburn 
Correctional Facility,

Respondent-Appellee.

B e f o r e  :
K a ufm an , Chief J  ridge, an d

S m it h , F einberg , M ansfield , M ulligan , Oakes, T im bers, 
Gu r f e in , V an Graafeiland, M e sk il l , Circuit Judges.

On re h e a r in g  en  banc.

Appeal from dismissal of petition for habeas corpus by 
the United States District Court for the Southern District 
of New York, Robert L. Carter, Judge, on the legal ground 
that petitioner had failed to raise federal constitutional 
claim in state courts.

Affirmed.

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J esse B erm an , New York, New York, for Peti­
tioner-Appellant.

Louis J . L eeko w itz , Attorney General, State of 
New York (Samuel A. Hirshowitz, F irst 
Assistant Attorney General, Margery E. 
Reifler, Assistant Attorney General, of 
Counsel), for Respondent-Appellee.

M ulligan , Circuit Judge:

The petitioner-appellant Gates appealed from an unre­
ported decision in the United States District Court for the 
Southern District of New York, Hon. Robert L. Carter, 
Judge, dated May 27, 1976, which denied without a hearing 
his habeas corpus application. The district court granted 
him a certificate of probable cause. On appeal a panel of 
this court by a 2-1 vote reversed and remanded for an 
evidentiary hearing. Gates v. Henderson, slip op. 1345 
(January 12, 1977). On the suggestion of Robert J. Hen­
derson, Superintendent, Auburn Correctional Facility, re­
spondent-appellee, and at the request of a member of the 
panel of this court for an en banc poll, we granted rehear­
ing en banc. We vacate the panel judgment and decision, 
supra, and affirm the order of the district court dismissing 
the petition for a writ of habeas corpus.

I

At approximately 1 :00 a.m. on the morning of September 
7, 1966 a policeman, attracted by screaming, entered the 
Spring Valley, New York apartment of Patricia Gates. He 
and her upstairs neighbor, Mrs. Mierop, found Patricia 
Gates mortally wounded by knife stabs, lying on her bed 
in a pool of blood. She was removed to a hospital and 
was pronounced dead at 1 :2G a.m. Patricia Gates was the

5362



estranged wife of the petitioner A rthur Richard Gates, 
having received a decree of separation from him in June 
of that year which awarded her custody of their four 
children. As they left the courthouse petitioner told his 
wife in the presence of her attorney, “You will never live 
to enjoy the children. I  will see to it myself.” The award­
ing* of custody of the children to his wife rankled Gates. 
Mrs. Mierop was later to testify at his murder trial that 
two days before the murder she heard Gates tell his wife, 
“You better enjoy the kids while you have them. You won’t 
have them for long.”

A t about 1 :45 a.m. on the morning of the murder Gates 
was stopped by a police officer in the business district of 
Spring Valley for failing to dim his headlights. Upon 
learning his identity, the officer arrested Gates for assault 
apparently having received a wanted person bulletin for 
Gates some ten minutes before. Gates was brought to po­
lice headquarters and without protest was fingerprinted 
and palmprinted.

The investigation of the murder by the police revealed 
that entrance to Patricia Gates’ apartment had been ob­
tained through a bathroom window which had been opened 
after the screen had been removed. A set of fresh finger­
prints was found on the screen so positioned that the prints 
could have only been made by someone standing outside the 
first floor apartment and pulling the screen from its place. 
A palmprint with the fingers pointing into the room was 
also found on the bathroom windowsill. One fingerprint 
and one palmprint were positively identified as those of 
appellant.

Gates was convicted of murder in the first degree in 
County Court, County of Rockland, New York. On Febru­
ary 14, 1967 Judge Morton B. Silberman sentenced Gates 
to a mandatory life sentence noting that the jury verdict of

5363



premeditated and deliberate murder was fully justified by 
the evidence. Gates’ conviction was affirmed without opin­
ion by the Appellate Division, 29 A.D.2d 843, 288 N.Y.S.2d 
862 (2d Dep’t 1968) and by a unanimous opinion of the 
Court of Appeals, 24 N.Y.2d 666, 301 N.Y.S.2d 597 (1969). 
Chief Judge Fuld in his opinion for the court noted, “The 
defendant’s palm and fingerprints were located on the 
window through which the m urderer apparently entered 
the house. Such proof, not susceptible of any other explan­
ation, pointed ineluctably to the defendant’s guilt and was 
sufficient to exclude to a moral certainty any other reason­
able hypothesis.” Id. at 669, 301 N.Y.S.2d at 600. Gates 
then applied for a writ of error coram nobis 'which was 
denied. People v. Gates, 61 Misc. 2d 250, 305 N.Y.S.2d 583 
(Dockland County Ct. 1969), aff’d, 36 A.D.2d 761, 319 
N.Y.S.2d 569 (2d Dep’t 1971), motion for leave to appeal 
denied (1972).

n
In  August 1973 Gates filed a habeas corpus petition in 

the Southern District of New York raising as the only 
constitutional issue the lack of probable cause for his a r­
rest. Counsel was appointed for him under the Criminal 
Justice Act. 18 U.S.C. § 3006A. Counsel argued that the 
taking of Gates’ palmprints1 was in violation of his rights

1 The court appointed counsel for Gates raised only the issue of the 
unlawful taking of palmprints and not of fingerprints. The opinion of 
Judge Garter is limited to the palmprint issue. The habeas petition pre­
pared by Gates pro se refers only to his allegedly unlawful arrest and 
makes no mention of either fingerprints or palmprints. In his brief here 
Gates’ counsel limits the objection to the taking of palmprints. The 
panel opinion in this court, Gates v. Henderson, slip op. 1345, 1347 
(Jan. 11, 1977) refers to "prints” generally and makes no distinction. 
A reading of the trial record discloses that Gates’ counsel in his trial 
argument emphasized the taking of palmprints as an evidentiary use 
and not for the purpose of identification. The state has argued here 
that since Gates had already been arrested for a 1964 felony in New

5364



under the Fourth and Fourteenth Amendments since prob­
able cause for his arrest did not exist, Davis v. Mississippi, 
394 U.S. 721 (1969). Judge Carter, in denying relief, held 
that Judge Fuld’s opinion had already ruled that the Court 
of Appeals did not reach the merits of Gates’ “fruit of the 
unlawful arrest” argument since “it was not raised below 
at all” and that that conclusion had been already upheld 
“by two courts on state collateral attack.” As the district 
court noted, “The Court of Appeals was merely enforcing 
procedural requirements under New York law and chose to 
follow its policy of ignoring claims judged not to have been 
adequately raised below.” Gates v. Henderson, No. 73 Civ. 
3865, slip op. at 7-8 (S.D.N.Y. May 27, 1976).

On appeal to this court, a split panel reversed the dis­
trict court. Judge Oakes, writing for the majority held 
that counsel’s objection to the prints was “ambiguous” and 
could have been on both Fourth and F ifth  Amendment 
grounds; that under Stone v. Powell, 428 U.S. 465 (1976), 
which had been decided after Judge C arter’s opinion, 
habeas corpus review of search and seizure claims was 
foreclosed in the federal court only when the petitioner had 
an opportunity for full and fair litigation of the Fourth 
Amendment claims; that petitioner had no such opportu­
nity here since the majority found he had made a Fourth 
Amendment objection at the trial level which was never 
considered by the state courts. The majority further con­
cluded that even if no Fourth Amendment objection had 
been made, under Fay v. Noia, 372 U.S. 391 (1963) the dis­
trict court could deny federal habeas relief only if Gates 
had deliberately by-passed state procedures. Gates v. Hen-

York, his fingerprints were already available to the state and that there­
fore the objection now made to the palmprint taking was in any event 
harmless since the fingerprint evidence was damning per se. We do not 
address the point further since we hold that in any event there was no 
error in denying federal habeas relief.

5365



derson, supra, slip op. 1345 at 1357-58. Judge Timbers 
dissented.

I l l

The record of the trial of Gates in the Rockland County 
Court demonstrates beyond doubt that the objections of his 
counsel to the taking* of the palmprints on September 7, 
1966 was on F ifth  and Sixth Amendment and not at all on 
Fourth Amendment ground. Captain Eisgrau of the 
Clarkstown Police Department was called as a witness by 
the state. Mr. Newman, counsel for Gates stipulated out­
side the presence of the jury  that Eisgrau had taken Gates’ 
fingerprints and palmprints. The following colloquy en­
sued:

The Court: Mr. Newman, you inform me you want 
to make an objection outside the presence of the jury.

Mr. Newman: Right. As I  understand it, the District 
Attorney is about to introduce into evidence finger­
prints which were taken by the present witness, Cap­
tain Eisgrau of the Clarkstown Police Department.

Mr. Meehan: Did you say fingerprints?
Mr. Newman: Hand prints, and which were taken 

at the Clarkstown Police Department on the morning 
of September 7, 1966. While there is no question, and 
we will stipulate, that they were taken of the defen­
dant in this case, we raise objection not to the fact that 
they are or not his prints but to the introduction of 
those prints on the basis that this man’s constitutional 
rights both under the State and Federal Constitution 
have been violated by the taking of these prints and as 
such we object to them. .

The Court: Your objection is then on constitutional 
grounds to the mere fact of the taking of the prints?

Mr. Newman: Yes, sir.

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The C ourt: A s such?
Mr. Newman: Right, sir.
The C ourt: I  will overrule that objection.

(Emphasis supplied.)

Subsequently, John A. Slater, Identification Officer, Bu­
reau of Criminal Identification, Rockland County Sheriff’s 
office, who also took Gates’ prints was called as a witness 
for the state. Gates’ counsel on voir dire outside the pres­
ence of the jury made objection to the use of the palm- 
prints taken by Slater and this exchange took place:

The Court: Do you want to be heard on that, Mr. 
Newman?

Mr. Newman: Other than what I  have said, I  don’t 
think there is too much further to say. I  don’t think 
this defendant has been properly advised of his right 
prior to the time that this palm print was taken and 
as such 1 feel it would he a violation of lo th  the State 
and federal constitutions to permit this document to 
he received in evidence at this time.

The testimony is clear, there is no question that no 
advice of rights was given to the defendant and as 
such it is prejudicial.

(Emphasis supplied.)

Moreover, Mr. Newman further clarified his constitu­
tional objections of the day before to the Eisgrau palm­
printing of Gates:

Mr. Newman: I  want the record to indicate, sir, 
that actually in making this objection yesterday it was 
intended, although not spelled out in this degree for 
the reason that trial strategy, if you would call it 
that, would dictate that I  do it this morning after 
the attempt to get this into- evidence, so that the record

5367



is clear my objection yesterday on the constitutional 
grounds also was on the basis that there was no show­
ing that this was free, voluntary giving or necessary, 
nor was there any advice given to the defendant that 
this would or could be used against him in evidence at 
the trial of this matter.

(Emphasis supplied.)
In addition to these colloquies out of the presence of 

the jury  the cross-examination of both officers by Newman 
makes it crystal clear that his constitutional objection to 
the palmprints was prim arily based on the F ifth  Amend­
ment, whether force had been employed to take the prints 
and whether Gates had been warned that they could be 
used in evidence against him. The fingerprints were viewed 
as taken for the purpose of identification but the palm- 
prints were singled out by counsel as being an unusual 
step only taken for their use on trial. There is not a single 
mention of the Fourth Amendment and the record is 
barren of any discussion at any time of the legality of the 
arrest. No suppression motion was ever made.

In  his post-trial motion the only constitutional issue 
raised by Gates’ cousel involving the taking of both finger­
prints and palmprints was as follows:

Mr. Newman: Along the same general lines con­
cerning the fingerprints and self-incrimination, I  think 
that our stage of society now, Your Honor, has reached 
the position where we can no longer consider the taking 
of fingerprints which are used by police authorities as 
being a proper way of identifying a person.

I  think that we have now reached the stage where 
our constitutional safeguards are such that I  would 
advance here that in this particular case the taking of 
the fingerprints themselves constituted a violation of 
this man’s constitutional safeguards.

5368



This is especially true, I would respectfully submit, 
where they were taken under the circumstances as 
they were in this particular case, before the man had 
been convicted of the crime, and I  think that as I  said 
before, our society now has reached the intelligent 
position whereby this can no longer be condoned be­
cause, in effect, what we are saying is that although 
you can not speak to this man, you cannot take his 
statement from him without certain advice and certain 
safeguards, you can do physical things to him which 
compels him to he a witness against himself, and I  
would respectfully submit that on the basis of both the 
State and Federal Constitutions that this man’s rights 
had been violated by the mere taking of the finger­
prints and palm prints themselves.

(Emphasis supplied.)

On his appeal to the Appellate Division, Second Depart­
ment, Gates was represented by the same firm which had 
appeared for him on trial. Two points in the brief were 
addressed to the constitutional issues involved in the 
taking of the prints, Point IV raised squarely the Sixth 
Amendment issue that Gates’ prints were taken for evi­
dentiary purposes without his counsel being present. I t 
was argued that under United States v. Wade, 388 U.S. 
218 (1967), Gates was entitled to have his counsel present 
at the time his palmprints were taken since this step repre­
sented a “critical stage” of the proceeding tantamount to a 
line-up. Point V of the brief was prim arily devoted to 
the F ifth  Amendment claim that the taking of the prints 
was for evidentiary and not identification purposes and 
therefore constituted testimonial compulsion. A reading 
of the eight pages of the brief devoted to the alleged errors 
of constitutional dimension attributed to the trial judge, 
demonstrates conclusively that counsel had not raised and

5369



did not intend to raise any issue at all with, respect to the 
propriety of Gates’ arrest. If  the omnibus constitutional 
argument had been related to the incident of his early 
morning arrest, allegedly made without probable cause, the 
issue could have been fairly brought to the court’s atten­
tion without specific reference to the Fourth Amendment. 
But reading the tria l record here makes it certain that 
the thrust of Gates’ argument was that he had been forced 
to submit to the fingerprinting procedure without being 
advised that the tests could be used against him on trial 
and that he was entitled to counsel at the time the test was 
being administered.

Aside from the clear evidence in the record itself, there 
is support from the lacunae in the record. Had the issue 
of the propriety of his arrest been in the mind of Gates 
or his counsel then surely a suppression motion would have 
been necessary to develop the facts surrounding the arrest 
and the reliability of the evidence depended upon by the 
police. No request for such a hearing was made. Our 
reading of the record is further supported by the brief of 
Gates’ new counsel retained for the appeal to the New York 
Court of Appeals. I t contains this language with respect 
to the Fourth Amendment claim:

The Court may consider the question of the admis­
sibility of the fingerprint identification evidence on 
the ground now urged although an objection was made 
at the trial only on F ifth  and Sixth Amendment 
grounds.

For the first time, as Chief Judge Fuld correctly observed, 
the Fourth Amendment issue surfaced in that court.

Although the defendant now asserts that his arrest 
was unlawful, his failure to object to the use of the 
evidence on that ground, or even to intimate that such

5370.



an issue was in the ease, deprived the People of any 
opportunity to show the information in the possession 
of the police a t the time of Gates’ arrest. I t  may well 
be that, when the arrest was effected—-though only 45 
minutes after the commission of the crime—the police 
had already gathered facts, such as the defendant’s 
threats against his wife, which actually furnished rea­
sonable grounds for believing that he had committed 
the crime. Certainly, on the basis of the record now 
before us, we should not presume otherwise.

24 N.Y.2d at 670, 301 N.Y.S.2d a t 601 (footnote omitted).

We conclude therefore that the panel’s finding that 
Gates’ objection on constitutional grounds was “regret­
tably ambiguous” is not substantiated by a reading of 
the entire trial record. As the highest court of the state 
found, as well as two reviewing coram nobis state courts 
and the district court here, no Fourth Amendment claim 
based on the alleged illegality of Gates’ arrest was ever 
made in or suggested to the trial court.2

2 Since no objection was made at the trial level as required under the 
then governing New York procedural law, N.Y. Code Crim. Proe. § 81-3-d 
now codified as N.Y. Crim. Proe. Law § 710.40, the defendant is deemed 
to have waived any objection during trial to the admission of evidence 
based on the ground that it was unlawfully obtained. We have held 
that failure to raise the objection at the time required by § 813-d pre­
cludes raising the question on the habeas corpus petition. United States 
ex rel. Tarallo v. LaVallee, 433 F.2d 4 (2d Cir. 1970), cert, denied, 
403 TJ.S. 919 (1971). This rule accords with our own practice of barring 
suppression of evidence claims on appeal where there was no suppression 
motion or objection on trial. United States v. Bianco, 534 F.2d 501, 
508 (2d Cir.), cert, denied, 429 U.S. 822 (1976); United States v. 
Indiviglio, 352 F.2d 276, 277 (2d Cir. 1965) (en banc), cert, denied, 
383 U.S. 907 (1966).

In O’Berry v. Wamwright, 546 F,2d 1204 (5th Cir. 1977), cert, denied, 
45 U.S.L.W. 3840 (U.S. June 27, 1977), a convicted state defendant had 
similarly failed to raise his Fourth Amendment claim on trial. He did 
raise it on appeal to the state court where it was rejected because of 
a Florida procedural requirement comparable to that of New York re­
quiring that the issue be raised on trial. The Fifth Circuit found that

5371



IV
In Stone v. Powell, 428 U.S. 465 (1976) the Supreme 

Court reversed cases from both the Eighth and Ninth Cir­
cuit Courts of Appeals which had granted federal habeas 
corpus relief under 28 U.S.C. § 2254 to state prisoners 
whose convictions of murder in state courts had been 
affirmed on appeal.3 In  each case the prosecution relied

under Stone v. Powell, supra, he had the opportunity to present the 
issue even though the state court chose to resolve the claim on an inde­
pendent, adequate, non-federal basis. In Wainwright v. Sykes,------U.S.
------, 45 U.S.L.W. 4807 (June 23, 1977) petitioner who failed to raise
a Fifth Amendment claim at trial as required by Florida law was held 
precluded from raising it on federal habeas corpus.

3 In Stone v. Powell which came to the Court from the Ninth Circuit, 
the defendant vcas convicted in state court on a murder charge. His 
conviction rested to a large degree on testimony concerning a revolver 
found in his possession when he was arrested for violating a vagrancy 
ordinance. The trial court rejected the defendant's contention that this 
testimony should have been excluded because the ordinance was uncon­
stitutional and the arrest therefore invalid. The state appellate court 
affirmed and this judgment was concurred in by the federal district 
court when ruling on defendant’s application for habeas corpus. The 
Ninth Circuit, 507 F.2d 93 (1974), reversed, finding the vagrancy ordi­
nance unconstitutional and consequently defendant’s arrest illegal. That 
court recognized that the application of the exclusionary rule in this 
instance would not act as a deterrent with respect to police officers but 
assumed that it would deter the legislature from passing unconstitutional 
statutes.

In Wolff v. Bice, the companion case to Stone, the defendant was 
convicted of murder in a state court on the basis of evidence seized 
pursuant to a search warrant which he claimed on a suppression motion 
was invalid. The trial court denied this motion and was affirmed on 
appeal. The defendant sought relief by filing a habeas petition pur­
suant to 28 U.S.C. § 2254 in the federal district court. The court found 
that the warrant was invalid and was affirmed by the Eighth Circuit 
513 F.2d 1280 (1975).

The Supreme Court in an opinion by Mr. Justice Powell reversed both 
these cases. Chief Justice Burger concurred in a separate opinion calling 
for the abandonment of the exclusionary rule. Id. at 496. Mr. Justice 
Brennan, joined by Mr. Justice Marshall, dissented on the ground that 
the application of the exclusionary rule by state courts was mandated 
by the Constitution and that 28 U.S.C. § 2254 was available to redress 
any denial of asserted constitutional rights. Id. a t 502. Mr. Justice

5372



on evidence obtained by alleged unconstitutional searches 
and seizures. Mr. Justice Powell, writing for the majority, 
sharply curtailed federal habeas review of state convic­
tions by stating:

We hold, therefore, that where the State has provided 
an opportunity for full and fair litigation of the 
Fourth Amendment claim, the Constitution does not 
require that a state prisoner be granted federal habeas 
corpus relief on the ground that evidence contained 
in an unconstitutional search or seizure was intro­
duced at his trial.

Id. at 481-82 (footnote omitted).

The issue before us then is whether the State of New 
York provided Gates with the opportunity for full and 
fair litigation of his Fourth Amendment claim. That the 
state did so cannot be open to serious challenge. In  re­
sponse to Mapp v. Ohio, 367 U.S. 643 (1961) the New York 
Legislature provided a statutory mechanism for the sup­
pression of evidence obtained through an unlawful search 
or seizure in violation of the defendant’s Fourth Amend­
ment rights. N.Y. Code Crim. Proe. §§ 813-c through e.4 
The motion to suppress is generally to be made prior to 
trial but it may be made during trial where the defendant 
was unaware of the seizure or did not have either mate­
rial evidence or the opportunity to make a pretrial mo­
tion. There is no contention here that the State of New 
York failed to provide the procedural devices affording 
Gates an opportunity to raise the issue of his allegedly 
unlawful arrest. ,It is undisputed, as we have indicated,

White, while noting the ineffieacy of the exclusionary rule, also dissented 
on the grounds that the instant petitions were' cognisable under 28 
XT.S.O. § 2254. Id. at 586.

4 Now codified as N.Y. Crim. Proc. Law Art. 710.

5373



that Gates’ counsel made no pretrial motion to suppress. 
The record further reveals that during trial when the 
fingerprint and palmprint evidence was offered, Gates was 
provided with the opportunity to raise his constitutional 
objections out of the presence of the jury. As pointed out 
in P a rt I I I  of this opinion, Gates never raised any Fourth 
Amendment objection. This is clearly established by the 
record and was the view of the New York Court of Ap­
peals when Gates’ counsel candidly admitted in his brief 
that that appeal was the first occasion on which the Fourth 
Amendment objection was raised. Thus Gates had the op­
portunity at the trial court but waived it; raised it be­
latedly, after already having had review in the Appellate 
Division, in the Court of Appeals where it was rejected. 
He later raised it in coram nobis applications in the state 
court where it was again rejected because it was not raised 
on trial.

How then can we possibly find that Stone v. Powell, 
supra, does not control the outcome here? The majority 
for the panel based its argument on two earlier Supreme 
Court cases, Townsend v. Sain, 372 TJ.S. 293 (1963) and 
Fay v. Noia, 372 U.S. 391 (1963). Neither case in our view 
is relevant.

a) Townsend v. Sain

In  Townsend v. Sain, supra, the Supreme Court listed 
six circumstances where a federal court must grant an 
evidentiary hearing to a habeas petitioner.6 These sit-

5 The Court held in Townsend:
that a federal court must grant an evidentiary hearing to a habeas 
applicant under the following circumstances: I f  (1) the merits of 
the factual dispute were not resolved in the state hearing; (2) the 
state factual determination is not fairly supported by the record 
as a whole; (3) the factfinding procedure employed by the state 
court was not adequate to afford a full and fair hearing; (4) there 
is a substantial allegation of newly discovered evidence; (5) the

5374



nations obviously relate to wliat constitutes a full and 
fa ir evidentiary hearing in a state court but Stone an­
nounced a new rule—-was the state prisoner afforded the 
opportunity for full and fair litigation of his Fourth 
Amendment claim. Had Gates requested and been given 
a hearing but it was deficient, an issue under the Townsend 
criteria might possibly surface. But since Gates did not 
seek a hearing Townsend is irrelevant. The m ajority of 
the panel imported Townsend here because Mr. Justice 
Powell, while referring to the opportunity for a full and 
fa ir litigation several times in his opinion without defini­
tion, 428 U.S. at 469, 480, 482, 486, 489, 494 n.37, in one 
place after reciting that phrase, id. at 494, makes a cf, 
reference to Townsend. As the panel m ajority recognized 
a cf. signal refers to an “authority support[ing] a proposi­
tion different from that in the text but sufficiently anal­
ogous to lend support.” Panel slip op. at 1353, quoting A 
Uniform System of Citation 7 (12th ed. 1976). While we 
are not fully appreciative of the significance of the foot­
noted reference, we are persuaded that it cannot be reason­
ably interpreted to require a federal court to conduct a 
hearing on an issue were the state prisoner, having an op­
portunity to do so, never tendered the question to the state 
court. Such a proposition would totally undercut the thrust 
and rationale of Stone. In fact, it  is not even required by 
Townsend.

The panel m ajority relied on the first situation listed 
in Townsend v. Sain, supra, 372 U.S. at 313-16, which would 
require a hearing if the merits of the factual dispute were 
not resolved in the state hearing. But the Court there said,

material facts were not adequately developed at the state-court 
, hearing;. or (6) for any reason it appears that the state trier of 

fact did not afford the habeas.applicant a full and fa ir fact hearing.
372 TJ.S. at 313.

5375



“There can not even be the semblance of a full and fair 
hearing unless the state court actually reached and decided 
the issues of fact tendered by the defendant.” 372 U.S. at 
313-14 (emphasis supplied). The issue of fact pertinent 
here related to the probable cause for Gates’ arrest by the 
police on the morning of his capture. But that issue was 
never raised in the trial court as we have indicated. Hence, 
Townsend did not mandate a hearing even before the opin­
ion of the Court in Stone.

b) Fay v. Noia

The fifth category mentioned in Townsend and relied 
upon by the panel was, “If, for any reason not attributable 
to the inexcusable neglect of petitioner, see Fay v. Noia 
[372 U.S. 391, 438 (1963)], evidence crucial to the adequate 
consideration of the constitutional claim was not developed 
at the state hearing, a federal hearing is compelled.” The 
panel concluded therefore that even if the state had prop­
erly found that the constitutional issue had not been raised, 
the power to deny federal habeas does not exist unless the 
federal habeas court finds that there was a deliberate by­
pass or knowing waiver of the federal claim. Panel slip 
op. at 1357.

We read Stone as effectively overruling Fay with re­
spect to Fourth Amendment exclusionary rule claims.6

6 Chief Justice Burger pointed out in his concurring opinion in Stone 
v, Powell, supra, 428 U.S. at 496, the distinction between evidence 
obtained as a result of an alleged violation of the Fifth Amendment 
and the reliable evidence obtained in an allegedly unlawful search and 
seizure under the Fourth Amendment:

The operation of the [exclusionary] rule is therefore unlike that of 
the Fifth Amendment's protection against compelled self-incrimina­
tion. A confession produced after intimidating or coercive interro­
gation is inherently dubious. I f  a suspect’s will has been over­
borne, a cloud hangs over his custodial admissions; the exclusion 
of such statements is based essentially on their lack of reliability. 
This is not the ease as to reliable evidence?—a pistol, a packet of

5376



Fay was premised on the hypothesis that “conventional 
notions of finality in criminal litigation cannot he permitted 
to defeat the manifest federal policy that federal constitu­
tional rights of personal liberty shall not be denied without 
the fullest opportunity for plenary judicial review.” 372 
U.S. at 424. Mr. Justice Brennan’s dissent in Stone is in­
deed based on the premise that the exclusionary rule was a 
constitutional ingredient of the Fourth Amendment. There­
fore, those denied the federal writ on such Fourth Amend­
ment issues are “persons whom society has grievously 
wronged.” Fay v. Noia, supra, 372 U.S. at 441.

However, Stone v. Powell, supra, is of m ajor jurispru­
dential significance because these tenets have been reex­
amined and rejected. The Stone m ajority has determined 
that the exclusionary rule in Fourth Amendment cases is 
not a personal constitutional right but rather a judicially 
created remedy, 428 U.S. at 486, now judicially curtailed. 
Hence, the rationale of Fay that plenary federal review is

heroin, counterfeit money, or the body of a murder victim—which 
may be judicially declared to be the result of an "unreasonable” 
search. The reliability of such evidence is beyond question; its 
probative value is certain.

Id. at 496-97 (emphasis in original).
I t is noteworthy that the deliberate by-pass rule of Fay v. Noia, supra, 

has recently been severely limited even in the case of alleged violations 
of Fifth and Sixth Amendment rights where the constitutional violation
reflects on the reliability of the evidence. In Wainwright v. Sylces,-----
U.S. ----- , 45 U.S.L.W. 4807 (June 23, 1977), the claim belatedly made
related to the voluntariness of a confession. In his review of Fay v. 
Noia whieh has now been limited to its facts, Mr. Justice Kehnquist 
discussed Francis v. Henderson, 425 U.S. 536 (1976) and Estelle v. 
Williams, 425 U.S. 505 (1976) which had already intimated Fay’s mor­
tality. As Mr. Justice Kehnquist indicated with respect to alleged 
Fourth. Amendment claims, "Only last Term in Slone v: Powell, 428 
U.S. 465 (1976), the Court removed from the purview of a federal 
habeas court challenges resting on the Fourth Amendment where there 
has been a full and fair opportunity to raise them, in the state court." 
-----  U.S. at ------, 45 U.S.L.W. at 4809 .(emphasis supplied). ..

5377



mandated to one grievously wronged by a denial of consti­
tutional rights has been destroyed, as Mr. Justice Brennan 
recognized, with respect to search and seizure claims.

The m ajority in Stone v. Powell, supra, further found 
that while the goal of deterrence of law enforcement offi­
cials from the violation of Fourth Amendment rights sup­
ports the implementation of the exclusionary rule at trial 
and on direct appeal of state court convictions, “the addi­
tional contribution, if any, of the consideration of search- 
and-seizure claims of state prisoners on collateral review 
is small in relation to the costs.” Id. at 493. The costs 
include intrusions on limited judicial resources, undermin­
ing the necessary principle of finality in criminal trials, 
heightening of friction between the federal and state sys­
tems of justice and erosion of the doctrine of federalism.7 
See id. a t 491 n.31. The cost is particularly high because 
the exclusionary rule “deflects the tru th  finding process 
and often frees the guilty.” Id. at 490.

In  Stone all that the Court required was that the state 
have provided the opportunity to the state prisoner for

7 Mr. Justice Powell had previously set forth these views in his con­
curring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 259 (1973). 
In both SchnecTcloth and Stone Mr. Justice Powell referred to Judge 
Henry Friendly’s article, Is Innocence Irrelevant? Collateral Attacks on 
Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970). Judge Friendly 
there stated that while the Fourth Amendment protects against unrea­
sonable searches,

it is a serious confusion of thought to transpose this doctrine of 
substantive law into the courtroom.91 At that stage the defendant’s 
constitutional right is to have a full and fair opportunity to raise 
his claims on trial and appeal and the assistance of counsel in doing 
so. There is no need to find a "waiver” when the defendant or his 
counsel has simply failed to raise a point in court, since the state 
has not deprived him of anything to which he is constitutionally 
entitled.

91. The fountainhead of this error is Fay v. Noia, 372 TI.S. 
391, 439-40 (1963).

Id. at 159-60 (footnote omitted).

5378



full and fair litigation of the Fourth Amendment claim; 
it did not further indicate that such opportunity, if not 
exercised in the state court, was only lost when the de­
fendant or his counsel deliberately and intentionally sought 
to by-pass the state process. Had the Court intended to so 
drastically qualify its rule, it certainly would have so 
stated. The resurrection of a now discredited Fay in a 
case such as this is indeed contrary to the Court’s analysis 
in Stone. Requiring the federal court to make collateral 
investigations of the subjective motivation of the state 
prisoner which would involve the expenditure of sorely 
pressed federal judicial resources and exacerbate possible 
friction between the federal and state judiciary, is anti­
thetical to the very factors which motivated the Stone 
majority to sharply limit the role of the federal court in 
Fourth Amendment state habeas procedures.8

This very case illustrates the conceptual basis for Stone. 
Gates was convicted of murder, presumably on the basis 
of the finger and palmprints found at the scene of the

8 These same policy considerations militate against the panel majority’s 
view that a Townsend hearing was necessary to determine if the state 
court had properly decided that no Fourth Amendment claim had been 
made. The panel opinion was critical of the conduct of the trial judge 
in overruling appellant’s objections without articulation of reasons as 
well as the state appellate court’s alleged unawareness or decision to 
ignore the appellant’s constitutional claim. On this point, the observa­
tion of the Chief Justice in Estelle v. Williams, supra, is enlightening. 

Nor can the trial judge be faulted for not asking the respondent 
or his counsel whether he was deliberately going to trial in jail 
clothes. To impose this requirement suggests that the trial judge 
operates under the same burden here as he would in the situation 
in Johnson v. Zerbst, 304 TJ.S. 458 (193.8), where the issue con­
cerned whether the accused willingly stood trial without the benefit, 
of counsel. Under our adversary system, once a defendant has the 
assistance of counsel the vast array of trial decisions, strategic and 
tactical, which must be made before and during tr ia l . rests with 
the accused and his attorney. Any other approach would rewrite 
the duties of trial judges and counsel in our legal system.

425 U.S. at .512.

5379



crime. Any illegality surrounding his arrest would not 
render the evidence any less genuine or damning. The 
state court provided every opportunity for him to have 
raised the issue. He was vigorously represented by coun­
sel who pressed constitutional issues to the taking of the 
prints but never to the legality of his arrest. Gates has 
never raised any issue as to the competence of his counsel. 
He was afforded full appellate review and further coram 
nobis procedure. No attack is mounted on the state proce­
dure requiring that the Fourth Amendment issue be raised 
at trial. The Fourth Amendment objection was raised for 
the first time in the Court of Appeals as his then counsel 
conceded. To permit a hearing now eleven years later, 
after memories have long since dimmed, to determine what 
cause the police had at that time to make an arrest would 
be neither just to society nor effectuate the rationale of 
the exclusionary rule—police deterrence. The Supreme 
Court in Stone held that under these circumstances federal 
intrusion is unwarranted.

If the state provides no corrective procedures at all to 
redress Fourth Amendment violations, federal habeas cor­
pus remains available. United States ex rel. Petillo v. New 
Jersey, 418 F. Supp. 686 (D.N.J. 1976). I t  may further 
be that even where the state provides the process but in 
fact the defendant is precluded from utilizing it by reason 
of an unconscionable breakdown in that process, the fed­
eral intrusion may still be warranted. See Frank v. Man- 
gum, 237 U.S. 309 (1915) ; Bator, Finality in Criminal Law 
and Federal Habeas Corpus for State Prisoners, 76 Harv. 
L. Eev. 441, 456-57 (1963). But that is not this case. Stone 
v. Powell, supra, holds that We have no authority to review 
the state record and grant the writ simply because we dis­
agree with the result reached by the state courts. The basic 
inquiry is whether the state prisoner was given the oppor-

5380



tunity for full and fair litigation of Ms Fourth Amendment 
claim. We find that Gates was given that opportunity and 
hence we affirm the district court dismissal of his petition 
for habeas relief.

Oakes, Circuit Judge, with whom Judges Smith and Fein-
berg concur (concurring in the re su lt) :

Two developments in the period since the panel decision 
was filed lead me to change my vote from one of reversal 
to one of affirmance. F irst, additional facts not mentioned 
in the State’s brief to the panel or in its petition for rehear­
ing and presented for the first time in conjunction with its 
en banc brief make it clear that appellant’s trial-level 
objection to the admission of palmprint evidence was not 
based on the Fourth Amendment. Second, a recent Su­
preme Court decision, Wainwright v. Sykes, 45 U.S.L.W. 
4807 (U.S. June 23,1977), indicates that appellant’s lack of 
trial objection amounted to the type of state procedural 
default that forecloses federal habeas consideration of 
whether he was denied his constitutional rights. Accord­
ingly, I  concur in the judgment of the court.

I .

The only trial objection brought to the attention of the
panel is the one printed in its opinion, ante, - ----F.2d at
----- , slip op. a t 1347-48. That objection, as the panel
majority wrote, is “regrettably ambiguous,” id. at ----- ,
slip op. at 1347, in that it is susceptible to interpretation as 
either a Fourth or a F ifth  Amendment claim. This am­
biguity perplexed Judge Carter below as much as it per­
plexed the panel, and the State, responding to his injury,

5381



gave him no more information about this objection than it 
later gave the panel.1 One could have interpreted the opin­
ions in the state courts, both on direct appeal and on coram 
nobis, as necessarily meaning that no objection on Fourth 
Amendment grounds had been made, and perhaps the State 
thought that by furnishing references to those, it had done 
all that was necessary. To the panel majority, however, 
the state court opinions were simply inexplicable in view 
of the objection we had before us,2 and unfortunately the

1 Judge Garter had asked counsel, by letter dated February 10, 1976:
1. Is it true, as the portions of the record quoted by [defense 

counsel] seem to show, that objection was made at trial to the 
admission of the evidence in question?

By letter dated March 2, 1976, the State answered this question in part 
as follows:

The objections referred to are catch-all constitutional objections 
on constitutional grounds. Nowhere in the colloquy cited by peti­
tioner is the specific grounds of the objection set forth. Nowhere 
in the colloquy is the Fourth Amendment even mentioned. The 
objection could have been made on other (Fifth Amendment) 
grounds, for example.

2 Judge Carter had also found the state court opinions inexplicable. 
In the letter cited in note 1 supra, he asked a second question referring 
to the objection before him:

2. I f  such objection was made, how is it that three New’ York 
State courts’ decisions were premised on the belief that such ob­
jection was not made?

The State’s response to this second question was in essence that the 
state courts had ignored the apparent objection because they thought 
it "inadequate under state law to preserve the issue for appeal.” As 
the panel majority pointed out, however, none of the state opinions said 
that the objection was inadequate; from what the State had told Judge 
Carter and the panel, it appeared that the state courts had simply ignored 
the objection. We thus stated:

[I] f  the state courts were holding, as the court below believed, 
that the objection appellant did make was inadequate for state 
law purposes, the normal and proper course would have been for 
them to state that holding and supporting reasons. Of. Arlinghaus 
v. mtenour, 543 F.2d 461, 464 (2d Cir. 1976) (per ..curiam) ("A 
decisionmaker obliged to give reasons to support his decision may 
find they do not; 'the opinion will not write.’ ” ). Since they made

5382



State’s petition for rehearing shed no further light on the 
problem.

When the State filed its en banc brief in this ease, it also 
filed and referred to three key documents. The first of 
these was a trial transcript, which was not part of the orig­
inal panel appeal record. This transcript reveals three in­
stances other than the one called to the panel’s attention in 
which appellant’s counsel discussed the palinprint evidence, 
and in all of these other instances it is clear, as the quota­
tions in the en banc majority opinion demonstrate, ante,
----- • F.2d a t ----- , that the objection to the evidence was on
Fifth  and Sixth, not Fourth, Amendment grounds.* 3 The 
second key document filed at the en banc stage is appel­
lant’s Appellate Division brief, in which, as the en banc 
majority opinion notes, id. at 5366, points are made relating 
only to the F ifth  and Sixth Amendments. Finally, appel­
lant’s brief in the New York Court of Appeals, also filed 
with us only at the en banc stage, conceded that no Fourth 
Amendment objection had been made at trial, a fact that 
explains the Court of Appeals’ conclusion, puzzling to the
panel majority, see ante,----- F.2d a t ------ , slip op. at 1356-
57, that appellant had failed “even to intimate that such an 
issue was in the case,” 24 N.Y.2d at 670, 249 N.E.2d at 452, 
301 N.Y.S.2d at 601.

no such statement, it remains inappropriate for a federal court to 
dismiss a habeas petition on the basis of pure speculation as to 
what the state courts might implicitly have been holding.

Ante, ------  F.2d at ------, slip op. at 1356-57.

3 These objections place in a more coherent context the fact that the
objection before the panel, ante, ------ F.2d at ------, slip op. at 1347,
was "to the mere fact of the taking of the prints.” In the State’s 
original brief to the panel, no help on this point was provided, the 
State arguing simply that the objection was insufficiently specific and 
that it "could have been on Fifth Amendment grounds.” Brief for 
Respondent-Appellees at 13. See also note 1 supra.

5383



II.

These three documents, not presented to the panel, are 
convincing proof that appellant did not make a Fourth 
Amendment objection at trial. This lack of objection means 
that appellant did not even attempt to invoke the New York 
procedure available at that time for obtaining the suppres­
sion of evidence, N.Y. Code Crim. Proc. §§ 813-c, 813-d 
(predecessor to N.Y. Crim. Proc. Law § 710.40 (McKinney 
1971 & Cum. Supp. 1976-77)), and this alone might bar his 
federal habeas claim under our holding in United States 
ex rel. Tarallo v. LaVallee, 433 F.2d 4, 7-8 (2d Cir. 1970), 
cert, denied, 403 U.S. 919 (1971). See LiPuma v. Commis­
sioner, No. 77-2006, slip op. 4657, 4666-68 (2d Cir. July 11, 
1977). A legitimate inquiry prior to the Supreme Court’s 
most recent Term, nevertheless, was whether appellant’s 
failure to object amounted to a deliberate bypass of “the 
orderly procedure of the state courts,” Fay v. Noia, 372 
U.S. 391, 438 (1963), or whether instead it was an inadver­
tent omission, entirely unrelated to trial strategy, see 
Kibbe v. Henderson, 534 F.2d 493, 496-97 (2d Cir. 1976), 
rev’d on other grounds, 45 U.S.L.W. 4457 (U.S. May 16, 
1977).

Contrary to the suggestion in the en banc majority opin­
ion, a n te ,------F.2d a t -------, Stone v. Powell, 428 U.S. 465
(1976), in my view did not overrule Fay  v. Noia with re­
spect to the deliberate bypass standard. See O’Berry  v. 
Wainwright, 546 F.2d 1204, 1219-24 (5th Cir.) (Goldberg, 
J., dissenting), cert, denied, 45 U.S.L.W. 3840 (U.S. June 
27, 1977). Indeed, by citing to Townsend v. Sain, 372 U.S. 
293 (1963), in its summary of the “opportunity for full and 
fair litigation” test, 428 U.S. at 494 n.36, the Stone opinion 
appears to consider Fay v. Noia of some importance, since 
Townsend contains a crucial citation, to Fay, 372 U.S. at 
317. Two other decisions from the Supreme Court’s 1975

5384



Term, Estelle v. Williams, 425 U.S. 501 (1976), and Fran­
cis v. Henderson, 425 U.S. 536 (1976), could have been read 
as undercutting Fay’s deliberate bypass standard, see 
Estelle, 425 U.S. at 526 (Brennan, J dissenting); Fran­
cis, 425 U.S. at 545-47, 552-53 & n.4 (Brennan, J., dissent­
ing), but the Court, which had ample opportunity, certainly 
did not say that it was affecting Fay in any way.4 Until 
the Supreme Court spoke more definitively, we as an in­
ferior court were bound by Fay v. Noia, and thus the panel 
majority applied the deliberate bypass standard.

The Supreme Court has now spoken more definitively. 
In Wainwright v. Sykes, supra, the Court stated that Fran­
cis had significantly restricted Fay’s “dicta” concerning 
deliberate bypass. 45 U.S.L.W, at 4811. In  the context of 
a failure to object at trial to admission of a confession, a 
failure that precluded later state relief under the state’s 
contemporaneous objection rule, the Court held in Wain­
wright that federal habeas relief was also precluded by the 
operation of such a rule. In the process the Court “re­
je c te d ]” the “sweeping language of Fay  v. Noia,” which 
language went, in the Court’s view, “far beyond the facts 
of the case eliciting it.” Id. at 4812. Wainwright’s discus­
sion of problems with Fay’s deliberate bypass test, id., is 
underscored by its adoption of a sweeping rule, first used 
in a more limited context in Francis v. Henderson, supra*

4 This fact led some commentators to question whether the Court was 
exercising its power responsibly. See P. Bator, P. Mishkin, D. Shapiro 
& H. Wechsler, Hart and Wechsler’s The Federal Courts and the Fed­
eral System 256 58 (2d ed. Supp. 1977).

5 The rule announced in Francis was expressly applicable only to the 
issue of timely challenges to grand juries. The principal concern of the 
Supreme Court was with not having- different, more stringent standards 
on collateral review of state convictions challenged on grand jury-related 
grounds than, it had with regard to collateral review of federal convic­
tions challenged on the same grounds. See 425 U.S. at 541-42. As to 
the latter, the Court had held in Davis v. United States, 411 U.S. 233 
(1973), that grand jury challenges not raised before the federal trial,

5385



under which a bypass of state procedures forecloses all 
habeas relief unless both prejudice from the alleged state 
error and cause for the bypass are shown, 425 U.S. at 542. 
In  the instant case, while actual prejudice from the evi­
dence’s admission might be shown, compare 45 U.S.L.W. 
at 4813 (substantial other evidence of guilt in Wainwright)
with panel op., ante, ------  F.2d at ------ , slip op. at 1347
(recognition by New York court of critical importance of 
print evidence to appellant’s conviction), there is no ex­
planation for the failure to object, see 45 U.S.L.W. at 
4812.6 Appellant’s Fourth Amendment claim is therefore 
not cognizable in a federal habeas court under the Francis- 
Wainwright standard.

III.
Although this case can now be resolved on the basis of 

appellant’s failure to comply with New York’s contempo­
raneous objection rule, the en banc majority opinion goes 
on to discuss extensively the ramifications of Stone v. Pow­
ell. In  light of this, a brief discussion of the Stone test of 
“an opportunity for full and fair litigation of a Fourth 
Amendment claim,” 428 U.S. at 482, is necessary. My prin­
cipal concern is with the en banc majority opinion’s state-

which are therefore deemed waived, absent a showing of cause, under 
Fed. R. Crim. P. 32(b)(2), (f) , could not be raised on collateral review 
absent a showing of both cause and actual prejudice, 431 U.S. at 243-15. 
Hence Francis derived directly from a narrow federal rule of procedure 
and appeared to be designed merely to ensure symmetry in the law. a 
conclusion underscored by its failure to discuss Fay v. Noia. See panel
op., ante, ■ . F.2d a t -------, slip op. at 1359-60 ; O’Ferry v. Wainwright.
546 F.2d 1204, 1223 (5th Cir.) (Goldberg, dissenting) (Francis is
"sui generis”), cert, denied, 45 U.S.L.W. 3840 (U.S. June 27, 1977).

6 The most likely explanation is one relating to negligence or inadver­
tence on the part of trial counsel. Such an explanation was apparently 
also involved in Wainwright v. SyTces, however, see 45 U.S.L.W. at 4816 
(Brennan, dissenting); but see id. at 4814-15 (Stevens.. J., con­
curring), yet the Court held that the petitioner there had not met the 
Francis "cause” standard, id. at 4812.

5386



ment that federal habeas consideration of a Fourth Amend­
ment claim is only warranted if either “the state provides 
no corrective procedures at all” or “the defendant is pre­
cluded from utilizing [the state procedures] by reason of
an unconscionable breakdown in that process.” Ante, ------
F.2d a t ----- .

While these two situations are unquestionably ones in 
which the requisite Stone “opportunity” has not been given 
a defendant, they do not, I  believe, cover the entire range 
of cases in which such an opportunity might be found lack­
ing. An example is provided by the case with which the 
panel majority here thought we were dealing, one in which 
an objection had seemingly been ignored by several state 
courts, in apparent violation of those courts’ own rules.
See panel op., a n te ,----- F.2d a t -------, slip op. at 1350-51
& n.3, 1356. A federal habeas judge might term such ig­
noring of a Fourth Amendment claim “unconscionable” in 
the en banc majority opinion’s terms, but, without addi­
tional facts, such terminology would be unfortunate7 in a 
ease in which the habeas judge really meant only that there 
had been no “meaningful inquiry by the state courts” into 
the defendant’s asserted claim, Bator, Finality in Criminal 
Law and Federal Habeas Corpus for State Prisoners, 76 
Harv. L, Rev. 441, 457 (1963). Cf. United States v. Robin­
son, No. 76-1153, slip op. 5021, 5057-58 (2d Cir. July 28, 
1977) (en banc) (Gurfein, J ., dissenting) (problem of ap­
pellate court being forced to call trial judge “arb itrary” 
or “irrational” when it means something less serious), 
sion: Roy had indeed seen Marehand with Arm and knew

I believe that the Supreme Court in Stone v. Powell, 
had it intended to apply as stringent an “opportunity”

7 This choice of words would not, exactly assist the very type of harmony 
between state and federal courts, based on a recognition of the com­
petence of state courts, with which $fo«e v. Powell was concerned. See 
428 TT.S. at 493-94 n.35.

5387



test as that suggested by the en banc m ajority opinion, 
would have said so in unambiguous terms. Instead, the 
Court repeatedly used quite general language. See 428 
U.S. at 480, 482, 486, 489, 494, 495 n.37. I  take it from this 
that what the Court was really indicating is that each case 
must be examined on its particular facts. The term “fair,” 
used so often in Stone, implies such an examination, con­
noting as it does a role for equitable discretion. The fed­
eral 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.8 I  Avould follow these decisions and require the 
district court to make an examination of individual cir­
cumstances, with the standard for testing the defendant’s 
treatment in the state courts simply the one given to us 
by the Supreme C ourt: whether the defendant had an op­
portunity for full and fair litigation of his Fourth Amend­

8 See, e.g., O’Berry v. Wainwright, supra, 546 F.2d at 1215-16; Bracco 
v. Seed, 540 F.2d 1019, 1020 (9th Gir. 1976) ("No claim is made here 
that Bracco did not have a full and fair hearing in the Oregon court”) ; 
Chavez v. Rodriguez, 540 F.2d 500, 502 (10th Cir. 1976) (per curiam) 
(noting that the issue is "whether the state of New Mexico provided 
Chavez an opportunity for full and fair litigation” ; he had a sup­
pression hearing—"We have reviewed the state court transcript and 
find that this hearing was full and adequate”) ;  George v. BlacTcwell, 
537 F.2d 833, 834 (5th Cir. 1976) (per curiam) ("A review of the 
record in this case demonstrates beyond doubt that appellee received 
a full and fair hearing in the state court . . . . ” );  Losinno v. Bender- 
son, 420 F. Supp. 380, 382 (S.D.N.Y. 1976) (Weinfeld, J.) (question 
whether " 'an opportunity for full and fair litigation’ of such claim 
was afforded petitioner in the state courts” ; careful consideration of 
petitioner's state court treatment); Pulver v. Cunningham, 419 F. Supp. 
1221, 1224 (S.D.N.Y. 1976) (Ward, J.) (citing Townsend v. Sain and 
considering trial and appellate hearings in petitioner’s case), appeal 
docTceted, No. 76-2133 (2d Cir. Oct. 15, 1976). I  have not located any 
case contra. In United States ex rel. Petillo v. New Jersey, 418 F. 
Supp. 686, 688-89 (D.N.J. 1976), the court did not have to reach this 
isghe because it found inadequate the entire state procedure with regard 
to certain types of Fourth Amendment claims.

5388



ment claim, having in mind now that, where there is a 
failure to object at trial, there must, in addition to prej­
udice, be at least a satisfactory explanation therefor 
under Wainwright v. Sykes, supra, 45 U.S.L.W. at 4812-13.

I concur in the judgment.

S m it h , Circuit Judge (concurring and joining in opinion 
of Judge Oakes):

I  concur in the judgment and join in the opinion of 
Judge Oakes, concurring in the result.

F einbebg , Circuit Judge (c o n c u rr in g  an d  jo in in g  in  op in ion  
o f Judge O akes):

I concur in the judgment and join in the opinion of 
Judge Oakes, concurring in the result.

5389



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