The exhaustion doctrine set forth in 28 U.S.C. § 2254(b) provides that a federal court shall not grant a state prisoner's petition for habeas corpus unless he has fully exhausted all state judicial remedies. Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, slip op. at 4 (3d Cir. 1984); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). The exhaustion requirement is met either when the petitioner's federal claim has been fairly presented to the highest available state court, or when a means by which the petitioner can reasonably present a claim no longer exists. United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975). Unless all claims brought before the court have been exhausted, the entire petition must be dismissed. Rose v. Lundy, 455 U.S. 509, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).
Respondents contend that petitioner has not exhausted his state judicial remedies with regard to any of his claims. Specifically, it is argued that petitioner's failure to appeal the denial of post-conviction relief to the Appellate Division or State Supreme Court leaves unexhausted petitioner's claims of ineffective assistance of counsel and violation of his fourth amendment rights. Respondents' brief at 7. Respondents further argue that petitioner's claim challenging the constitutionality of the standard for ineffective assistance of counsel applied by the state courts is unexhausted because petitioner never presented it to the Appellate Division or in the post-conviction relief proceeding. Id. at 6. We find that respondents' arguments misrepresent exhaustion doctrine and, as a result, misconstrue the relevant events in this case.
Respondent incorrectly states that all avenues of post-conviction relief must be exhausted before a claim is cognizable in a habeas corpus petition. In fact, once a claim has been directly appealed to the state's highest court, it will be considered to be exhausted, even if no post-conviction relief is sought. United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978); see Jones, No. 83-5277, slip op. at 4 (one opportunity for state courts to consider claim is sufficient for exhaustion). There is no dispute that petitioner fairly presented his claim for ineffective assistance of counsel to both the Appellate Division and the New Jersey Supreme Court. Regarding petitioner's claims that the New Jersey standard for measuring effective assistance of counsel is unconstitutional, we do not view this argument as independent from petitioner's broader sixth amendment claim of ineffective assistance of counsel. Rather, we consider the former claim to be subsumed in the latter argument: that petitioner was deprived of the effective assistance of counsel as measured by a federal constitutional standard. Since our inquiry into petitioner's claim of ineffective assistance of counsel is of course controlled by federal interpretation of sixth amendment requirements, it would not be necessary to pass on the constitutionality of New Jersey's standard for determining the effectiveness of counsel. To the extent that these arguments merge, therefore, we find that petitioner clearly exhausted his claim of ineffective assistance of counsel.
Finally, with respect to petitioner's claim that his fourth and fourteenth amendment rights were violated by the warrantless search and seizure of the bedsheet, which was subsequently admitted into evidence, we find that we are precluded from considering this claim under the doctrine established in Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). In Stone, the Court ruled that "where the State has provided an opportunity for full and fair litigation of a fourth amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Id. at 494. Petitioner has not argued that he was denied an opportunity to litigate fully and fairly his fourth amendment claim, nor does the record in any way support such a contention. To the contrary, petitioner has argued that his counsel simply failed to utilize the available means for challenging unlawfully obtained evidence. Thus, we conclude that petitioner's fourth amendment claim is plainly not cognizable as a basis for habeas corpus relief. As such, § 2254 is inapplicable and there is no need to inquire whether petitioner exhausted this claim before the state courts. See Engle v. Isaac, 456 U.S. 107, 120, 71 L. Ed. 2d 783, 102 S. Ct. 1558 n.19 (1982).
In sum, we find that petitioner has exhausted all claims which afford a ground for habeas corpus relief. Accordingly, the State's motion to dismiss will be denied.
2. The Merits
To prevail on this petition for a writ of habeas corpus, Morrison must show that he was deprived of the effective assistance of counsel and that he was thereby prejudiced. United States v. Baynes, 687 F.2d 659 (3d Cir. 1982). To establish ineffectiveness, it must be clear that petitioner's attorney did not exercise "the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730 (3d Cir. 1970); accord Baynes, 687 F.2d at 665; United States v. Swinehart, 617 F.2d 336 (3d Cir. 1980). Application of this standard "entails a careful inquiry into the particular circumstances surrounding each case," Baynes, 687 F.2d at 665; moreover, impressive performance by an attorney at trial will not excuse insufficient pretrial investigation and preparation. Moore, 432 F.2d at 739.
We come quickly to the conclusion that petitioner's trial counsel was ineffective under the standard announced in Moore. Put simply, counsel failed to conduct any meaningful pretrial discovery, and thus was totally unaware that certain damaging evidence might have been the appropriate subject for a suppression motion. Counsel seems to have acted on the misapprehension that the State was obligated to turn over anything that the defense might be interested in examining. Little else was offered by way of excuse by petitioner's lawyer in the face of repeated criticism by the state trial judge, except for counsel's rather remarkable attempt to justify his conduct by noting that up until trial he had been told that the victim "didn't want to go ahead with this case." See Transcript of March 14, 1979, 102-115. The state trial judge recognized that there was a very valid basis for suppression, and we cannot conceive of any legitimate claim that the search and seizure was constitutional.
Based on the unmitigated negligence of petitioner's trial counsel in failing to conduct any discovery, combined with the likelihood of success of a suppression motion had it been timely made, we find that petitioner was deprived of effective representation.
We arrive at our conclusion that this ineffective representation prejudiced petitioner with only slightly more difficulty. Prejudice is to be measured under the harmless error doctrine, for, as announced in Baynes, 687 F.2d at 670-71 (emphasis in original):
Any substantial doubt must be resolved in favor of the defendant, inasmuch as Chapman [ v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)] permits a finding of harmless error only where it is concluded beyond a reasonable doubt that no prejudice resulted from the identified constitutional violation . . . . In other words, [a petitioner] need only demonstrate that his attorney's ineffectiveness was not harmless "beyond a reasonable doubt."