ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 79-1258)
Before Adams, Van Dusen and Higginbotham, Circuit Judges.
This is an appeal from the denial of a petition for a writ of habeas corpus. The sole question presented is whether the appellant was provided with an opportunity for a full and fair litigation of his fourth amendment claim in the state courts, thereby precluding federal collateral relief. We hold that because there was a complete breakdown in the state procedure he was not provided with an opportunity for a full and fair litigation of his fourth amendment claim and therefore will reverse the judgment of the district court.
Rodney T. Boyd was charged in Monmouth County, New Jersey with rape, assault with intent to rape, assault with an offensive weapon, and unlawful possession of a weapon. On August 23, 1976, he was arraigned on the indictment before the Hon. Patrick J. McGann, Jr., Judge of the New Jersey Superior Court, and was represented by the Office of the Public Defender of New Jersey, Monmouth County Region for the purposes of arraignment only. Judge McGann informed Boyd that he would be provided with a form to apply for formal representation by the Public Defender. Following arraignment, Boyd was held in the Monmouth County Jail.
On September 17, Boyd was interviewed by an investigator of the Public Defender's Office. On September 21, 1976, the form completed by Boyd and entitled "Declaration of Indigency and Application for Representation" ("Form 5A") was received by the Public Defender. Following the requisite indigency investigation, Boyd was accepted as a Public Defender client and was interviewed extensively on October 5, 1976. At that time, he described an allegedly warrantless search of his home during which the police had seized certain items of clothing allegedly worn by the complaining witness, the rope with which she allegedly had been tied, a .38 caliber pistol, and a knife. He also stated that the complaining witness had since left the jurisdiction and would not be available to testify for the State at trial.
On October 6, the Public Defender filed a motion on behalf of Boyd to suppress. New Jersey Court Rule 3:5-7(a) required motions to suppress to be made within thirty days after the defendant pleads to the indictment. The motion to suppress was denied with prejudice and without evidentiary hearing or inquiry into the merits because the motion, which had been filed fourteen days late, was not accompanied by a formal application to enlarge the time within which the motion could be brought. Sometime after January 1, 1976, the Assignment Judge of Monmouth County had instituted a policy of requiring formal applications for extensions. Prior to that time, a motion to enlarge the time was argued on the return date of the motion to suppress.
On December 7, Boyd pleaded guilty to the rape charge. The plea was entered in accordance with a plea bargain under which the State agreed to move the dismissal of the remaining counts of the indictment, and of an additional outstanding indictment, and to recommend an indeterminate commitment in the New Jersey Adult Diagnostic and Treatment Center, not to exceed ten years. On February 18, 1977, Boyd was so sentenced. However, due to problems concerning his assignment to the Center,*fn1 it was necessary to renegotiate the plea. Therefore, on February 25, Boyd withdrew his plea of guilty of rape and pleaded guilty to assault with intent to rape. The other charges were dropped and Boyd was convicted and sentenced to an indeterminate commitment at the Center.
On appeal, the Superior Court, Appellate Division affirmed the dismissal of the motion to suppress.*fn2 A petition for certification was denied by the Supreme Court of New Jersey on December 19, 1978. Boyd then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Following an evidentiary hearing, the petition was denied. This appeal followed.*fn3
Under Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976), we may not consider fourth amendment challenges in the habeas corpus setting "where the State has provided an opportunity for full and fair litigation" of the fourth amendment claim. This case requires us to give meaning in this factual context to the Supreme Court's phrase "an opportunity for full and fair litigation." The appellant argues that no opportunity effectively was provided him. An explanation of the district court's approach is helpful to an understanding of this case.
The district court, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), concluded that Boyd's failure to file his motion to suppress within the thirty day limitation of New Jersey Court Rule 3:5-7(a) did not "counsel against" habeas review. In Sykes, a state prisoner sought habeas relief on the ground that he had not understood the Miranda rights before making a statement. The Supreme Court held that the alleged deprivation of a federal constitutional right in state proceedings on independent state procedural grounds might not bar federal habeas review where the petitioner shows "cause" for the procedural default and "prejudice" from the abrogation of the federally-guaranteed right. The district court in this case, applying the rule in Sykes, concluded:
Counsel has explained to this Court's satisfaction why, with slightly more than one business day from petitioner's application to the running of the thirty day time limit of R. 3:5-7(a), they were unable to file a timely motion. Furthermore, I cannot believe that Judge Lane's new policy on applications to enlarge was so firmly entrenched as the State claims. In sum, counsel had adequate cause for late filing, and also for failure to properly move to extend the period. There was a genuine question whether the victim would have been available to testify at trial. If she were not, admission of the evidence seized in the warrantless search would certainly be prejudicial under even the most stringent standard. See Collins v. Auger, 577 F.2d 1107, 1110-1111 (8th Cir. 1978), (cert. denied, 439 U.S. 1133, 99 S. Ct. 1057, 59 L. Ed. 2d 96 (1979)). Even if the witness were available, the value of the ...