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October 23, 1984


The opinion of the court was delivered by: DEBEVOISE

 Petitioner, an inmate of the New Jersey State Prison of Rahway, was convicted on March 18, 1977 of murder, commission of murder while armed, robbery and commission of robbery while armed. He seeks issuance of a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, et. seq.

 Petitioner alleges that he was arrested at his home after a warrantless, nonconsensual entry. Thereafter he gave a confession which was used against him at trial. Prior to trial he had moved to suppress evidence found in an automobile which had been seized immediately after the arrest. As part of his attempt to demonstrate the unlawfulness of the search of the automobile, petitioner's attorney questioned the police claim that they had a warrant for petitioner's arrest. Under then prevailing New Jersey law a warrant was not required to make an arrest on probable cause in a private home. After petitioner had appealed his conviction and had lost in the Appellate Division of the New Jersey Superior Court and in the New Jersey Supreme Court, but before the time to petition the United States Supreme Court for certiorari had expired, the United States Supreme Court decided the case of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). Payton held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. Instead of petitioning the United States Supreme Court for certiorari petitioner sought post conviction relief in the New Jersey trial court. Relief was denied on the grounds that the Supreme Court would not apply Payton retroactively. Thereafter the United States Supreme Court ruled that Payton was to be applied retroactively to all convictions that were not yet final at the time the decision was rendered. United States v. Johnson 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982).

 This case raises the troublesome questions (i) whether petitioner's conviction should be considered "final" within the meaning of Johnson and (ii) if not, whether the State has provided petitioner an opportunity for full and fair litigation of his claim within the meaning of Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) so as to preclude further review in a habeas corpus proceeding.


 On September 27, 1976, three men robbed the Newark Tobacco and Candy Company. During the course of the robbery, the store's manager was shot and killed. The police, after ascertaining that petitioner's car was used for the getaway, learned of his residence on September 28, and arrested him on September 29, at approximately 6:40 p.m.

 At police headquarters, after being read his Miranda warnings and signing a waiver of Miranda rights, petitioner was interrogated for a period of time. He then met privately with one Denise Goode, to whom he apparently was married, and her child. From 10:30 p.m. on September 29 to 12:44 a.m. on September 30, police detectives took a detailed statement from petitioner in which he admitted participation in the robbery.


 On February 28, 1977 petitioner moved to suppress a carton of cigarettes bearing the tax number used exclusively by the robbed store and found by police during a search of the petitioner's car. At the hearing on the motion, the arresting officer, upon questioning by the prosecutor, affirmatively represented that there had been an armed robbery arrest warrant open for petitioner on September 29, 1976, for a previous robbery at a different establishment. (Suppression Hearing transcript at 73). The officer who searched petitioner's car stated that such warrant existed for the petitioner's arrest. (see Suppression transcript at 14). The arresting officer also testified that he did not have the arrest warrant in his possession at the time of petitioner's arrest. (Suppression Transcript 77). Review of the transcript for the hearing on the motion to suppress reveals that the central issue addressed was whether the cigarette carton found in petitioner's car should be suppressed and that the issue of the warrant's validity was peripheral to the hearing.

 In his opinion on the petitioner's motion to suppress the trial court judge stated:

I find that a vehicle described as a 1968 or 1969 four-door brown Cadillac with license plate 512 FTV was observed fleeing the scene of the robbery. I find further that a check of the license plate number revealed that the car was registered to one Willie Jenkins, residing at 65 Mercer Street, for a 1971 red Oldsmobile. I find that there was a warrant issued for the arrest of Willie Jenkins albeit on a different offense than that for which he is presently charged to wit: Armed robbery.
I find that Willie Jenkins was arrested pursuant to said warrant . . .
I find that the arrest was a lawful arrest. I find further that the inventorying of the contents of the vehicle was properly made. (Suppression Hearing transcript at 14-142).

 At trial, petitioner did not challenge the validity of his arrest and specifically did not claim that a valid arrest warrant had not existed. At no time at or before trial did he object to the admission at trial of his confession as being the fruit of an illegal arrest. According to petitioner's memorandum of law submitted with his petition, petitioner states that his trial counsel advised that it would be fruitless to raise any further legal arguments related to the arrest, because the trial judge had already ruled that the arrest was legal at the suppression hearing. (Plaintiff's memorandum of law in support of petition at 25). ...

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