CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
Petitioner was convicted in a Virginia state court of possession of heroin with intent to distribute,*fn1 and was
sentenced to eight years in prison. The Supreme Court of Virginia denied review and affirmed the conviction by order, and petitioner then sought federal habeas corpus in the United States District Court for the Eastern District of Virginia.
In that court he contended that the judgment of conviction under which he was held was subject to two constitutional infirmities. His first claim was that the state statute under which he had been convicted violated his Fourteenth Amendment rights insofar as it permitted the jury to base the conviction "solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed."*fn2 His second claim was that evidence admitted at his trial had been obtained as a result of an unlawful search and seizure in violation of his rights under the Fourth and Fourteenth Amendments.
Respondent conceded that petitioner had "exhausted his State court remedies," App. 11, but nevertheless urged the District Court to dismiss the petition in order to permit the petitioner to present his due process argument to the state courts for reconsideration in light of the decision of the Supreme Court of Virginia in Sharp v. Commonwealth, 213 Va. 269, 192 S. E. 2d 217 (1972). In Sharp, which was decided after the Virginia Supreme Court had declined to review petitioner's conviction on direct appeal, but before he had filed his petition for a writ of habeas
corpus in the District Court,*fn3 the Virginia Supreme Court held § 54-524.101 (a) to be violative of both the State and Federal Constitutions.*fn4
The District Court ruled against petitioner on the merits of his search-and-seizure claim, and agreed with respondent that the challenge to the statute should be resubmitted to the Virginia state courts. It therefore granted summary judgment in favor of respondent without passing on petitioner's claim that the statute was invalid under the Fourteenth Amendment.*fn5
Petitioner appealed to the Court of Appeals for the Fourth Circuit. That court, in an unreported decision,
agreed that the state court should have an opportunity to re-examine petitioner's claim in the light of Sharp, supra, and went on to hold that the District Court had acted prematurely in reaching the independent federal claim of unlawful search and seizure. It said:
"If relief is granted under Sharp, the state will have the option of releasing Francisco or retrying him. In either event the possibility exists that this ...