had nothing linking Jenkins to the tavern robbery at the time of this arrest on the 29th.
Thus there are factual issues whether a valid arrest warrant existed at the time of petitioner's arrest and whether the police officers misled the trial court at the suppression hearing. An evidentiary hearing would be required to decide these questions, and for present purposes I assume that there was not a valid arrest warrant and that the police officers were at least in error when they testified that such a warrant existed.
Two other grounds which respondent urges for dismissal of the petition also involve factual inquiries which would have to be decided at an evidentiary hearing, namely, (i) that notwithstanding the unlawful arrest, there was insufficient nexus between the arrest and the confession to require suppression of the confession and (ii) exigent circumstances rendered petitioners arrest valid even if made without a warrant.
Turning to two questions which can be decided on the record before me, I conclude that Payton is retroactively applicable here, but that the principles of Stone v. Powell preclude petitioner from relitigating his Fourth Amendment claim in this proceeding.
Applying United States v. Johnson, supra, literally, petitioner's conviction was not final at the time the decision in Payton was rendered. Although the New Jersey Supreme Court had denied his petition for certification, he still had the option to petition the United States Supreme Court for certiorari or to re-petition the New Jersey Supreme Court.
Respondent urges that petitioner, not having sought direct relief in either the United States or New Jersey Supreme Court, has forfeited his right to claim the retroactive effect of Payton : "at this stage, however, petitioner no longer is on direct appeal; his conviction is final. Thus, United States v. Johnson, making Payton retroactive to nonfinal judgments, does not apply". (Respondent's answer to Petition at p.1). The Court in Johnson recognized that even under its retroactivity approach "it may be unavoidable that some similarly situated defendants will be treated differently", id, 457 U.S. at 556-557, fn.17. However, I do not believe that this is a reason to disturb the language of Johnson. Payton applied because petitioner's conviction was not yet final at the time the decision [in Payton ] was rendered." id., 457 U.S. at 562.
Nevertheless, the question whether petitioner can raise his Payton claim is controlled by the nature of the proceedings in which he seeks to raise it. There is no question that he could have raised this issue in a petition for certiorari to the United States Supreme Court. It must be determined whether he can raise it here in a habeas corpus proceeding.
No challenge can be made that petitioner's confession was involuntary or that it was inadmissable because of a Miranda violation. Miranda v. Arizona 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The only ground for its exclusion is that it followed an arrest which, in violation of the Fourth Amendment, was effected without a warrant. Thus the case is governed by Stone v. Powell, supra, which holds that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted habeas corpus relief on the ground that evidence obtained on an unconstitutional search or seizure was introduced at his trial". 428 U.S. at 482. The reasoning behind Stone is that application of the exclusionary rule deflects from the truthfinding process, often freeing the guilty, and while deterrence of official misconduct supports implementation of the exclusionary rule at trial, "the additional contribution, if any, of the consideration of search- and-seizure claims of state prisoners on collateral review is small in relation to the costs" 428 U.S. at 493.
To satisfy the opportunity for the full and fair litigation requirement of Stone actual litigation of the Fourth Amendment claim is not required. Rather, Stone only requires that the state provide an opportunity to litigate regardless of whether the defendant actually takes advantage of it. Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978); Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), (en banc), cert. denied, 434 U.S. 1038, 54 L. Ed. 2d 787, 98 S. Ct. 775 (1978). See also Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980).
It must be decided whether the State provided petitioner with an opportunity for full and fair litigation of his Fourth Amendment claim. Viewing the State proceedings both prior to trial and after trial, I conclude that petitioner was provided with this opportunity.
At the time of the suppression hearing New Jersey law permitted an arrest in a suspect's home without a warrant if probable cause existed. Since Payton had not been decided there was no reason for petitioner's attorney to challenge the arrest on constitutional grounds. Nevertheless petitioner's attorney did raise the question of the existence of a valid warrant and examined the police witness on that subject. He did this as a part of his efforts to suppress evidence found in petitioner's automobile. The judge hearing the motion found on the basis of the evidence that a valid warrant existed.
On appeal and post conviction relief proceedings petitioner challenged the truthfulness of the testimony given at the suppression hearing and produced evidence which suggested that at the time of petitioner's arrest, the warrant was in "John Doe" form and did not name petitioner.
In the post conviction relief hearing the trial court heard petitioner's factual and legal contention based on Payton, which by then had been decided. The trial court ruled against petitioner on retroactivity grounds which later proved to be an erroneous prediction of the United States Supreme Court's position on retroactivity. Nevertheless it cannot be said that the New Jersey Courts failed to provide petitioner with a full and fair opportunity to litigate his Fourth Amendment claim.
In considering a petition for habeas corpus, "the question is not whether the trial court 'correctly' decided the Fourth Amendment issue, but whether the petitioner was given an opportunity for full and fair state court litigation of his Fourth Amendment claim". United States ex rel. Petillo v. State of New Jersey, 562 F.2d 903, 906 (3d Cir. 1977). In Petillo, the Court of Appeals reversed the district court's overturning of a state trial judge's credibility determination. The Court held that state court credibility findings should not be disturbed unless they are "inherently incredible." Id. at 907. By analogy, the inability of the court hearing the post conviction relief application to predict the manner in which the United States Supreme Court would apply Payton does not render the proceeding less than full and fair. Troubling as it may be, the New Jersey Supreme Court's apparent unawareness of the then recently issued opinion in United States v. Johnson, supra, when it denied certification does not render the proceedings less than full or unfair.
Thus I conclude that under Stone v. Powell, supra, petitioner may not raise his Fourth Amendment claim in a habeas corpus proceeding.
The petition will be dismissed without an evidentiary hearing. However, in view of the unusual circumstances of the case I shall certify probable cause for purposes of an appeal. I shall enter an appropriate order.