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January 30, 1984

NEIL MORRISON, Petitioner,
IRWIN I. KIMMELMAN, Attorney General of New Jersey and JOHN J. RAFFERTY, Superintendent, Rahway State Prison, Respondents

The opinion of the court was delivered by: STERN

 In this petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, petitioner Neil Morrison challenges the constitutionality of his confinement at New Jersey State Prison at Rahway on three grounds. *fn1" First, petitioner contends that the warrantless search of his apartment and seizure of certain evidence submitted at trial by the prosecution violated his fourth and fourteenth amendment rights. Second, petitioner maintains that his attorney's failure to make a timely demand for discovery and a timely suppression motion at trial deprived petitioner of his right to effective assistance of counsel. Third, petitioner argues that the legal standard for ineffective assistance of counsel relied on by the New Jersey State courts in disposing of his appeal is unconstitutional. Respondents move to dismiss the petition on the ground that petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254(b). For the reasons that follow, we will deny respondents motion to dismiss and grant the writ of habeas corpus.


 The State called the victim's mother, who testified that after her daughter told her of the rape, the mother retrieved her daughter's underpants, which she said felt sticky, and later gave them to the police. Police Officer Talarico testified that he took the underwear and delivered it to the Police Laboratories.

 Detective Most took the stand and testified that she had gone to Morrison's apartment with the victim, where they were let in by Wesley Harris, a friend of Morrison who lived in the same building. Most stated that she had photographs taken of the apartment, and that she then took the sheet from Morrison's bed. At this point in the testimony, defense counsel objected, stating that unless Most had had a search warrant or some other justification for taking the sheet, the testimony regarding the sheet, and the sheet itself, could not be offered in evidence. It soon became clear, however, that defense counsel had failed to request discovery prior to trial, and as such, was unaware that the search had taken place and that the State was in possession of the sheet. Because of the failure to conduct discovery, defense counsel had not been able to timely move to suppress the evidence prior to trial, pursuant to New Jersey Court Rule 3:5-7(a). The court, while stating that had a motion been timely made there would have been a "very valid basis for suppression", nonetheless held that defense counsel could no longer make such a motion since trial had begun. The court criticized defense counsel for having been remiss in failing to request discovery, noting that at least two reports -- a chemical analysis of the bedsheet ordered by the State, and a police report prepared by Most -- clearly indicated that the State had Morrison's sheet in its possession. Defense counsel's objection was overruled, and Most stated that the sheet, which had some stains and hairs on it, was sent to the Police Lab.

 The State then called a number of witnesses who had performed various lab studies on the stains and hairs found on the sheet, on blood and hair exemplars provided by the victim and Morrison, on the victim's underwear, and on the victim's physical examination results. These lab technicians collectively established that: stains on the seized bedsheet were positive for sperm from a man of blood type "O"; stains on the victim's underwear were positive for sperm from a man of blood type "O"; some of the vaginal tests performed at the hospital showed the presence of sperm; Morrison's blood type is "O"; and hairs recovered from the bedsheet were similar to head hair of both Morrison and the victim.

 The defense called four witnesses and the defendant himself, who developed a different version of the facts. It was defendant's testimony that he owed money to the alleged victim, and that she and her mother had been persistently demanding that she be paid. Morrison stated that on the day in question, he had been unable to pay his employee since the store had been robbed the night before (this testimony was corroborated by Mack Ross, co-owner of the fish store), so he went to make collections -- not deliveries -- from three bars that owed the store money. Defendant testified that the purported victim insisted on going with him to collect. After all three bars were unable to pay him any money, according to Morrison, the two of them went to Morrison's apartment building to collect rent money that Morrison was owed from some tenants to whom he rented apartments. He testified that the girl went up to his room, that she sat on his bed, that he tried unsuccessfully to collect money from his tenants, and that they then returned to the store. Wesley Harris, friend and purported lessee of Morrison, had earlier testified that he was present in the room with Morrison and the victim for nearly the entire time that the two were in the building. Morrison also stated that he had had sex with women, other than the victim, on the bed, and that Mack Ross would on occasion use his room and bed for a "sexual outlet". According to Morrison, the alleged victim went home, and her mother later told Morrison that she would "fix him" for not paying her daughter. Morrison stated that subsequent to charges being filed, the mother had on various occasions indicated that she would drop them. Morrison said that on the Sunday before the trial began, he met with her and the victim at the mother's home, at which time the mother again suggested that she was no longer interested in the prosecution going forward. Morrison also reported that the victim admitted at this meeting that he had not raped her, and stated that she had been afraid that her mother would find out about the fact that she had been having sex with her boyfriend, also the father of her child. *fn2"

 Defense counsel's summation dwelled largely on inconsistencies in the victim's testimony. Counsel also raised questions about the mother's admitted meeting with Morrison on the day before the trial began, suggesting that if the mother and the victim believed the rape had occurred, it would be odd behavior to meet calmly with the defendant in their own house on the eve of trial. Finally, defense counsel discredited the significance of the scientific evidence, noting that the expert witnesses had admitted that the test results provided no positive identification beyond matching blood type, nor could they pinpoint when various events had happened.

 The State's summation stressed that credibility was the key to the outcome of the case, noting that the judge's findings in this respect would turn on the witnesses' testimony, the "supportive" scientific evidence, and common sense. The State analyzed the perceived weaknesses in the testimony of each of the defense's five witnesses, and then discussed the scientific evidence. The State recalled that the victim's underpants were reportedly sticky after the alleged rape had occurred, and that the stains on the bed were from a man of the same blood type as defendant. Because the vaginal washes had demonstrated the presence of sperm, the State maintained that defendant could only argue that the victim had had sex with her boyfriend on the day in question, but noted that the defense had not called the boyfriend to testify nor had him tested for blood type. In concluding, the State contended that common sense precluded a finding of innocence, for if Morrison's story were correct, it would make no sense for the victim and her mother to frame Morrison by a fabrication that placed the rape in a room where another witness (Harris) had been present.

 After a recess, the judge returned and said: "I guess, gentlemen, that since I'm judge and jury and if I were to render a decision as you would get it from the jury, you would get a cut and dried answer of guilty or not guilty. But I think you're entitled to some of my observations before I give you the bottom line." The judge noted that there were discrepancies in both cases, but, after outlining the respective difficulties, the judge found that the inconsistencies in the defense's case outweighed those in the State's. After finding favor with the State's "common sense" argument, the judge stated in closing: "I won't comment anymore upon the testimony, gentlemen. But it's my opinion that the State has proven its case beyond a reasonable doubt, and it's my finding that the defendant is guilty [on all four counts]." The judge did not discuss the scientific evidence. Morrison was sentenced to eight-to-ten years for the rape conviction; sentences on the other counts were shorter and made concurrent with that imposed for the rape conviction.

 In appealing his conviction to the New Jersey Superior Court, Appellate Division, petitioner raised three arguments: (1) that the convictions should be merged since all four were based on a single criminal transaction; (2) that defense counsel's failure to make a timely demand for discovery and a timely suppression motion had deprived petitioner of his right to effective assistance of counsel and (3) that the trial court had erred in refusing to conduct a hearing to determine the legality of the search of petitioner's apartment and the seizure of his bedsheet. The Appellate Division held that petitioner had failed to demonstrate that his attorney's inadequacy was of "such magnitude as to thwart the fundamental guaranty of a fair trial." State v. Edge, 57 N.J. 580, 593, 274 A.2d 42 (1971). The Appellate Division then dismissed as "clearly without merit" petitioner's contention that the trial judge had erred in refusing to grant a suppression hearing. Petitioner's final argument, that all four convictions should be merged, was accepted by the Court. Finding that all charges arose from a single criminal transaction, the Appellate Division consolidated the convictions for carnal abuse, impairing the morals of a child, and private lewdness with the rape conviction. Accordingly, the convictions and sentences for the three lesser offenses were vacated. State v. Morrison, A-4157-78 (App. Div., Mar. 18, 1981).

 In his petition for certification to the New Jersey Supreme Court, petitioner denominated two arguments: first, that he was deprived of the effective assistance of counsel, and second, that the standard for ineffective assistance of counsel used by the Appellate Division is unconstitutional. *fn3" His petition was denied by the Supreme Court in May of 1981. State v. Morrison, 87 N.J. 368, 434 A.2d 1056 (1981).

 Over a year later, petitioner filed a petition for post-conviction relief with the Superior Court of New Jersey, Law Division. Petitioner again raised the issue of ineffective assistance of counsel, and challenged the trial court's failure to hold a suppression hearing or to exclude the evidence obtained during the search. Because these issues had been expressly ...

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