McLaughlin, Kalodner and Freedman, Circuit Judges
Author: Kalodner; Freedman
Marc Barry is now serving consecutive terms in the New Jersey State prison of two to three years on his pleas of guilty to two counts of an indictment charging him with (1) "an act of lewdness or carnal indecency" with a young female, and (2) possession of "obscene and indecent pictures" with "intent to utter and expose" them to others, in violation of N.J.S. 2A:115-1, N.J.S.A. and N.J.S. 2A:115-2, N.J.S.A., respectively.
He appeals from an Order of the United States District Court for the District of New Jersey denying, without hearing, his petition for a writ of habeas corpus, which alleged, inter alia, that he was deprived of his federal constitutional rights when the New Jersey courts, as hereinafter detailed, erroneously admitted evidence (pictures of the lewd acts) which was acquired by the police in an illegal search and seizure, thereby compelling him to plead guilty because he "had only this choice to make."
The District Court in its Opinion*fn1 held that "it is not necessary to reach the merits of the question of an illegal search and seizure" in view of the fact that "Barry admits in his petition that his plea of guilty was voluntarily made and that he knowingly instructed his counsel to plead guilty to the offenses for which he is now incarcerated", and, accordingly, his guilty plea "acts as a waiver of any defenses that might have been previously available to the Petitioner".*fn2
On this appeal, Barry challenges this holding and further asserts that the District Court erred in failing to grant an evidentiary hearing upon his application for the habeas corpus writ in view of his allegations that (1) he was the victim of an illegal arrest, and (2) the photographic evidence against him was the product of an illegal search and seizure.
We do not reach the critical issues presented here for the reason that Barry has not exhausted the post-conviction remedy available to him in the New Jersey courts under the provisions of N.J.R.R. 3:10A-1 et seq. as he was required to do before presenting his petition for federal habeas corpus relief.
We will preface our discussion by this "case history" of the instant habeas corpus petition.
In Barry's petition he made these allegations:
On the morning of September 1, 1965, a detective of the Somerville, New Jersey police force came to Barry's photographic studio along with a 17-year-old girl, and demanded, under threat of arrest, production of pictures for which she had posed. Barry then gave the detective several sets of negatives; one of the sets pictured Barry exposed, standing behind the girl who was in a dance costume, blindfolded and holding a cardboard sign of obscene nature; the detective later obtained a search warrant and in its execution found photographs of nudes which "form the basis factually" for the indictment; prior to his arraignment Barry retained counsel who filed a motion in the Somerset County Court of New Jersey challenging the validity of the arrest and seeking suppression of the seized photographs; the motion was denied; an interlocutory review of the denial of the motion was sought in the Appellate Division of the Superior Court of New Jersey*fn3 which declined to hear the appeal; Barry then filed a "Motion For Leave to Appeal" in the Supreme Court of New Jersey which denied the motion "on the merits";*fn4 thereafter prior to commencement of his trial, Barry, on application of his counsel, was granted permission to change his prior plea of not guilty to guilty and was sentenced to the terms he is now serving.
No appeal was taken from the judgment of sentence, nor did Barry take any other action in the New Jersey courts.
It must at this juncture be noted that the District Court was of the view that since Barry's motion to suppress the evidence had been "denied on the merits respectively by the Somerset County Court, the Appellate Division of the Superior Court and the New Jersey Supreme Court" he had "exhausted his remedies in the New Jersey courts on the issue of the legality of the search and seizure per se, Fay v. Noia, 372 U.S. 391 [83 S. Ct. 822, 9 L. Ed. 2d 837] (1963)".
It must further be observed that the District Court did not consider in its opinion the availability to Barry of the remedy afforded by the New Jersey post-conviction statute and that neither Barry nor the State of New Jersey, ...