Full opinion text
ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS TAKASUGI, District Judge. Pursuant to 28 U.S.C. § 636(b)(3), attached is the Report and Recommendation of the United States Magistrate who has reviewed the petition filed herein for issuance of a writ of habeas corpus. The Court has reviewed the petition, the return, the records submitted therewith, the traverse, the other points and authorities filed by the parties, and the attached Report and Recommendation, and concurs with and adopts the findings and conclusions of the United States Magistrate. IT IS ADJUDGED as follows: 1. That petitioner was convicted in violation of the Constitution of the United States. 2. That petitioner is entitled to issuance of a writ of habeas corpus from this Court. IT IS ORDERED that a writ of habeas corpus issue discharging petitioner from custody unless the respondent and the State of California shall, within sixty days from the date the Court’s judgment becomes final, permit petitioner to file a motion, pursuant to Penal Code § 1538.5, in the Los Angeles Superior Court to suppress the physical evidence referred to in the Magistrate’s Report and Recommendation. IT IS FURTHER ORDERED that the Clerk of the Court shall service copies of this Order, the Judgment, and the Report and Recommendation of the United States Magistrate, by United States mail, on the petitioner, petitioner’s counsel, the Attorney General of the State of California and the Presiding Judge of the Superior Court of the State of California for the County of Los Angeles. REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY HARVEY A. SCHNEIDER, United States Magistrate. This Report and Recommendation is submitted to the Honorable Robert M. Takasugi, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(3) and General Order No. 194 of the United States District Court for the Central District of California. Statement of Facts and Proceedings On February 27, 1978 petitioner filed his Petition for Writ of Habeas Corpus. The petition alleges that on February 6, 1975 petitioner was sentenced to state prison for the term prescribed by law following his convictions of violating California Penal Code §§ 209 (kidnapping for the purpose of robbery — two counts); 211 (robbery — two counts); 459 (burglary — three counts); and 182 subd. 1 (conspiracy to commit robbery, kidnapping and burglary). Petitioner’s conviction was sustained in the Los Angeles Superior Court. The petition further alleges that the judgment of conviction was affirmed by the California Court of Appeal (on December 3, 1975) and that a subsequently filed petition for hearing was denied by the California Supreme Court. The petition also alleges that petitioner previously filed petitions for writ of habeas corpus in the Sacramento County Superior Court, the California Court of Appeal and the California Supreme Court. Petitioner asserts that in each of these petitions there were raised the same issues as are presented in the present petition and that each of such petitions was denied. On April 21, 1978 respondent filed his Return to Petition for Writ of Habeas Corpus. On June 14, 1978 petitioner filed his traverse to the return. On June 22, 1978 Leslie Abramson, Esq. was appointed to represent petitioner and the matter was set down for a status conference on June 26, 1978. On the latter date the cause was set down for an evidentiary hearing to be held on September 12, 1978. The evidentiary hearing was subsequently continued to September 26, 1978 and again to October 24, 1978 and January 26, 1979. On January 23, 1979 pursuant to the Magistrate’s order, petitioner, through counsel, filed his Specifications of Incompetence of Trial Counsel Claimed by Petitioner Moran and Points and Authorities. On January 26, 1979 the cause came on for an evidentiary hearing. The hearing was required to be continued to February 7, 1979 due to the fact petitioner had inadvertently not been ordered out for the hearing. On February 7, 1979 the hearing was continued to February 9. On the latter date the evidentiary hearing commenced and, at the conclusion of the day’s proceedings, was continued to February 13, 1979. The hearing resumed on the latter date and was then continued to February 14, on which date the hearing was completed. The parties were then given time within which to file additional points and authorities with the Court. On March 15 and March 20, 1979 respondent and petitioner, respectively, filed supplemental points and authorities. Following the submission of the last referred to points and authorities, counsel for the parties and the Magistrate embarked upon the somewhat tedious task of crystalizing the issues which petitioner desired to present to the Court and determining whether petitioner had exhausted state remedies with respect to each of those issues. Counsel and the Magistrate also spent considerable time discussing, during several status conferences, the impact, if any, on this case of such recent decisions as Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); and Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978). These discussions were augmented by additional points and authorities filed by counsel. Petitioner’s Contentions As the result of the many proceedings held in this case and the documents submitted by the parties, petitioner abandoned a number of issues which he had at one time or another presented to this Court for determination in connection with the instant case. As a result of the abandonment by petitioner of certain issues it now appears petitioner is attacking his multiple convictions on the following grounds and no others: 1. That petitioner’s trial counsel did not afford petitioner competent representation prior to the commencement of trial in that: a. Counsel failed to research the applicable law on search and seizure relative to petitioner’s standing to object to the introduction of property seized from the Cusick premises. b. Counsel failed to notice or conduct a Penal Code § 1538.5 motion prior to trial aimed at the suppression of the briefcases and contents seized from the Cusick premises. e. Although urged by petitioner to do so, trial counsel failed to subpoena petitioner’s jail records from the Costa Mesa City Jail and the Orange County Jail in order to determine if petitioner was incarcerated at the time that a crucial meeting allegedly occurred between petitioner and the chief witness against him. d. Trial counsel failed to obtain the police reports concerning a complaint by the witness Timmons of a burglary occurring at his premises in 1974, which burglary may have been the basis for the witness’ revenge motive in attributing a damaging statement to petitioner. 2. That petitioner’s trial counsel did not afford petitioner competent representation during trial in that when, during the examination of the accomplice and chief witness Hayward, the prosecutor indicated his intent to introduce evidence seized from the Cusick premises, trial counsel failed to move to suppress the evidence pursuant to Penal Code § 1538.5 based on the erroneous belief that petitioner lacked standing to challenge that search. 3. That evidence was introduced against petitioner at his trial which was obtained in violation of the Fourth Amendment to the United States Constitution. 4. That the state trial court erroneously denied petitioner’s motion to dismiss the information in that petitioner was held to answer on insufficient evidence, i. e., the uncorroborated testimony of an accomplice. 5. That the trial court erred in not instructing the jury that petitioner’s oral admission was required to be viewed with caution. Discussion The Issues Relating to the Trial Court’s Alleged Errors in Failing to Dismiss the Information and in Erroneously Instructing the Jury As indicated above, petitioner has presented a number of issues to this Court for determination. Two of these issues may be disposed of summarily. Petitioner’s contention that the trial court erroneously denied his motion to dismiss the information in that he was held to answer on insufficient evidence, i. e., the uncorroborated testimony of an accomplice, is clearly without merit. It is well established in this Circuit that a conviction may be based on the uncorroborated testimony of an accomplice, provided that testimony is not incredible or unsubstantial on its face. See, e. g., U. S. v. Sigal, 572 F.2d 1320 (9th Cir. 1978). Since no federal constitutional question is presented when a conviction rests upon the uncorroborated testimony of an accomplice, a fortiori no such question is presented when a state criminal defendant is held to answer in state court based upon such testimony. Petitioner’s claim that the trial court erred in failing to instruct the jury that petitioner’s oral admission was required to be viewed with caution is equally without merit. It must first be noted that no such instruction was requested by petitioner. Beyond this, it is well established that the failure of a state judge to give a particular instruction does not raise a federal constitutional question unless the error rendered the trial so fundamentally unfair as to have denied the defendant due process of law. Shepherd v. Nelson, 432 F.2d 1045 (9th Cir. 1970). A review of the record in this case fails to reveal petitioner was denied due process of law by reason of the fact the trial court failed to give the instruction in question sua sponte. Moreover, the fact the United States Supreme Court has recently held that even so important an instruction as one relating to the presumption of innocence is not required to be given in every criminal case (Kentucky v. Whorton, - U.S. -, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979)) tends to corroborate the Magistrate’s belief that no due process violation occurred when the trial court failed to give the instruction currently under discussion. Petitioner’s Fourth Amendment Claim Petitioner claims that evidence was introduced against him at his trial which was obtained in violation of the Fourth and Fourteenth Amendments. Petitioner’s claim is specifically directed at two briefcases, and the contents thereof, seized from premises occupied by the Cusick family. The evidence in question was marked as People’s Exhibits 6, 6A-F, 7, and 7A-D at petitioner’s trial. Petitioner’s claim does not require extended discussion in light of the decision in Stone v. Powell, supra. In Stone the court stated: “In sum, we conclude 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 his trial. . . (428 U.S. at p. 494, 96 S.Ct. at p. 3052.) In light of Stone it appears that if a state has established a procedure which can be utilized by a criminal defendant to suppress evidence seized pursuant to an alleged illegal search and seizure, the state has fulfilled the requirement that it provide the “opportunity” to litigate Fourth Amendment claims, and such claims may not be addressed by a federal habeas corpus court. Tisnado v. United States, 547 F.2d 452 (9th Cir. 1976); Sallie v. State of North Carolina, 587 F.2d 636 (4th Cir. 1978). California has established a procedure for litigating Fourth Amendment claims. See Penal Code § 1538.5. Accordingly, it would appear this Court is barred from addressing petitioner’s Fourth Amendment claims directly in this proceeding even though, as will be made clear below, petitioner’s Fourth Amendment claims were not presented to the state trial court due to the conduct of petitioner’s trial counsel. Petitioner’s Sixth Amendment Claims As indicated above, petitioner’s remaining contentions relate to claims that his trial counsel, both prior to and during trial, did not afford to him the competent representation which is guaranteed by the Sixth Amendment to the United States Constitution. It is to these claims which the Magistrate now turns. Before addressing petitioner’s incompetence of counsel claims on the merits, it is important to note that all but two of these claims involve the contention that counsel’s alleged pretrial and trial incompetence re-suited in evidence being introduced at petitioner’s trial which was obtained in violation of the Fourth Amendment. In light of this fact respondent, relying on LiPuma v. Commissioner, Department of Corrections, State of New York, 560 F.2d 84 (2d Cir. 1977, cert. denied 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977)), contends that Stone v. Powell, supra, precludes a federal habeas corpus court from granting relief to a state prisoner whose claim of incompetence of counsel is based on counsel’s failure to properly advance a Fourth Amendment claim. Petitioner, on the other hand, relying on Sallie v. State of North Carolina, supra, contends that where the petitioner’s claim is that he was denied competent representation, the federal habeas corpus court may properly grant relief to the petitioner even though the underlying basis of the Sixth Amendment claim is that counsel’s incompetence precluded the petitioner from receiving state court adjudication of a Fourth Amendment claim. In a word, the Magistrate believes Sallie is correct and that Li-Puma is incorrect. The rationale of the decision in Stone v. Powell, supra, is quite clear. Thus, it is patent the court concluded that the deterrent effect of the exclusionary rule is not served when a federal habeas corpus court grants relief to a state prisoner based on a Fourth Amendment claim, assuming the petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. The court reasoned that “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 . . . There is no reason to believe, however, that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions. . . . ” (428 U.S. at p. 493, 96 S.Ct. at p. 3052). The claim that trial counsel was incompetent, even though the claim of incompetence is based on counsel’s failure to properly pursue and/or present a Fourth Amendment claim, implicates an entirely different interest. Thus, if federal habeas corpus relief is granted to a petitioner who claims he was denied competent representation because his counsel failed to advance a Fourth Amendment claim, the purpose of that relief is not all directed at punishing the police officers who engaged in the illegal search and seizure. Rather, relief is granted because the petitioner was denied the right to the fair trial that is guaranteed to all persons accused of crime in that he was represented by counsel who failed to afford competent representation and who thereby deprived the petitioner of a valuable constitutional right (the right to be free from an illegal search and seizure). Having concluded that this Court is not barred by Stone v. Powell, supra, from considering petitioner’s claims that he was denied the effective assistance of counsel (even though the allegedly ineffective assistance involves counsel’s failure to move to suppress evidence allegedly obtained in violation of the Fourth Amendment), the Magistrate now turns to a discussion of these claims on the merits. The Test for Determining Competency of Counsel Although at one time there was uncertainty in this Circuit concerning the test to be applied in determining whether a criminal defendant was rendered the assistance of counsel mandated by the Sixth Amendment, that uncertainty was resolved in Cooper v. Fitzharris, supra. In Cooper the court specifically stated: “We hold that the Sixth Amendment requires that persons accused of crime be afforded reasonably competent and effective representation. We also hold that where, as here, the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense. . . . ” (586 F.2d at p. 1327) In light of Cooper the appropriate inquiry is whether petitioner’s trial counsel afforded reasonably competent and effective representation pre-trial and during trial and, if not, whether counsel’s failure to render such assistance prejudiced the defense. The Evidence Relating to Petitioner’s Claim that Counsel Acted Incompetently Pri- or to Trial and During Trial by Not Asserting a Fourth Amendment Claim on Petitioner’s Behalf In order to analyze petitioner’s claim that his counsel incompetently failed to present a Fourth Amendment claim on his behalf before and during trial, it is necessary to understand the sequence of events that occurred in the trial court. This sequence is disclosed by the trial court record, as well as the evidence adduced at the evidentiary hearing held in this Court. Ronald Hayward was the first, and undoubtedly most critical, witness called by the prosecution at petitioner’s trial. In essence Hayward, who had been given immunity with respect to the offenses of which petitioner was charged and who had been promised aid by the prosecution with respect to another offense of which he (Hayward) had been convicted, testified that he committed the Lynn and Hargens offenses and that petitioner was his crime partner with respect to those offenses. While Hayward was on the witness stand, and out of the presence of the jury, the prosecutor indicated that he was “going to have Mr. Hayward identify physical evidence that I think somebody’s going to object to.” (RT 256) Thereafter, an extended colloquy took place between the court, the prosecutor, and counsel for petitioner and his co-defendants. This colloquy, which is contained at pages 257-268, inclusive, of the Reporter’s Transcript, is attached hereto as Appendix A (with pertinent parts thereof underscored). Following some additional colloquy, Hayward was permitted to identify two briefcases (People’s Exhibits 6 and 7) as being ones which Hayward believed petitioner had in his possession during the commission of the Lynn and Hargens offenses, among others. (RT 281-282) Hayward then identified a pair of handcuffs contained in People’s Exhibit 6 as one which he (Hayward) had previously seen in petitioner’s car. (RT 282) After Hayward identified a windshield wiper arm that was also contained in People’s Exhibit 6, an additional colloquy took place between the court, the prosecutor and defense counsel outside of the jury’s presence. This colloquy, which is contained on pages 282-285 of the Reporter’s Transcript, is attached to this Report as Appendix B. Following this colloquy Hayward was permitted to testify that the windshield wiper arm was used for breaking into cars. (RT 285) Hayward then proceeded to identify additional items contained within the two briefcases as ones which he and petitioner used during the commission of the offenses for which petitioner was on trial. (RT 286-288) At the conclusion of the People’s case-in-chief the court inquired if there was any objection to the introduction of any of the exhibits (RT 681), following which the following colloquy took place between petitioner’s counsel and the court: “MR. DEMBY: [petitioner’s counsel]: . As to the other items found at the house, in the suitcases, there is also no showing that they were obtained in a legal manner. For the same reason, they should not be allowed into evidence. “I would submit it on that. “THE COURT: Well, there is no requirement that the prosecution provide such a foundation unless it is challenged in some way, Mr. Demby. That would apply to every piece of evidence that is offered in a trial. You could make that objection, that the People haven’t shown that they obtained it legally. “The objection is overruled.” (RT 682-683) Thereupon, People’s Exhibits 6 and 7, and their contents, were admitted into evidence. (RT 684) After petitioner was convicted, proceedings were had in connection with a motion for new trial filed on his behalf. During this proceeding petitioner’s counsel, the prosecutor and the court made significant statements concerning defense counsel’s failure to move to suppress the items contained in Exhibits 6 and 7. These statements are set forth on pages 944-955, inclusive, of the Reporter’s Transcript and are attached to this Report as Appendix C. At the evidentiary hearing held in this Court Michael Demby, the Deputy Public Defender who represented petitioner in the trial court, testified that at the time of his representation of petitioner he had been a public defender for five years and had been trying felony cases for two years. During the time he represented petitioner Mr. Demby could recall no conversation he had had with petitioner concerning the briefcases found on the Cusick property and his file contained no reference to any such conversations. In fact, Mr. Demby testified that it was his belief he first heard about the briefcases after petitioner’s trial had begun and during the testimony of the first witness (Ronald Hayward). Mr. Demby made no formal discovery motion on behalf of petitioner while representing him in the Los Angeles Superior Court. Mr. Demby testified that he never talked to Rita Cusick prior to trial; he did talk to Dixie Moran (petitioner’s wife) but was not certain whether it was before or after trial. Mr. Demby testified that prior to trial the deputy district attorney, Mr. Watson, informed him as to what evidence was and was not going to be introduced by the prosecution. Mr. Demby believed the prosecution was going to introduce the same evidence that had been introduced by it at the preliminary hearing held in petitioner’s ease. No items taken from the briefcases (People’s Exhibits 6 and 7) had been introduced at the preliminary hearing. Mr. Demby stated that although he had obtained some discovery material from the prosecutor, he obtained the most discovery material from counsel for one of the co-defendants. Mr. Demby testified that prior to trial he was not in possession of any police reports relating to the seizure of the briefcases from the Cusick property. He further testified he was aware that Hayward’s testimony, being that of an accomplice, was required to be corroborated. In fact, he was concerned about the matter of corroboration prior to trial. Mr. Demby also testified that he relied on the representations made by the prosecutor as to the evidence that would be introduced and that he believed he had been “sandbagged” by the prosecutor when the latter sought and was granted permission to enter into evidence the briefcases and their contents. Mr. Demby reiterated his position that the first time he had ever heard of the items of evidence contained in the two briefcases was when the prosecutor mentioned them during the trial when Hayward was on the witness stand. Mr. Demby testified he was aware he could have made a motion to suppress the contents of the two briefcases during trial on the ground of newly discovered evidence. He repeated his belief that he first saw the police reports relating to the seizure of the briefcases during trial. After receiving these reports Demby realized search and seizure issues were presented. He did not make a motion to suppress at this time, however, because he didn’t think clearly and wasn’t aware that, contrary to his stated position at trial, a defendant who seeks to suppress evidence obtained as the result of an illegal search and seizure is not required to have any particular standing under California law. Mr. Demby conceded that he did not possess before trial all of the information he should have had with respect to the items seized from the Cusicks, and that had he possessed such material he would have done things differently. He could not remember if he had made any effort to look at any physical evidence prior to trial. Mr. Demby admitted he was surprised when the prosecutor indicated he was going to use the contents of the two briefcases. He then realized he did not have all of the information he thought he had. Mr. Demby could not remember if he though about asking for a continuance when he was first confronted with the contents of the two briefcases; he did, however, know he wanted to make a motion to suppress. Although Demby objected to the introduction into evidence of the contents of the briefcases, he did not make a formal motion to suppress as the court had earlier invited him to do. When he made the objection he knew it came too late since no record had been developed concerning the manner in which the briefcases had been seized. Mr. Demby admitted that no tactical advantage enured to the defense by allowing the contents of the briefcases into evidence. He also conceded he had made no conscious effort to allow the contents of the briefcases into evidence. Mr. Demby did not believe either petitioner or petitioner’s wife had mentioned the briefcases to him prior to trial. He knew the contents of the briefcases would be harmful to petitioner’s case. After reading the police reports concerning the seizure of the briefcases, Demby believed the search and seizure was unlawful. He repeated his belief that it was his misapprehension concerning the California law relating to standing to raise search and seizure issues which caused him not to make a motion to suppress during trial, i. e., he believed petitioner had no standing to make a motion to suppress because the briefcases were not discovered on petitioner’s property Mr. Demby admitted he was confused when confronted with the briefcases seized from the Cusicks. He also thought he had been deceived by the prosecutor. Demby had engaged in no research after being confronted by the contents of the briefcases and before stating he did not believe petitioner had standing to challenge the legality of the search pursuant to which those contents were seized. Petitioner’s Claim of Pre-Trial Incompetence Petitioner claims he was denied the assistance of counsel guaranteed by the Sixth Amendment in that counsel failed to research the applicable law on search and seizure relative to petitioner’s standing to object to the introduction of the property seized from the Cusick premises and failed to notice and conduct a Penal Code § 1538.5 motion prior to trial aimed at the suppression of the briefcases and their contents. The evidence in the record relating to these claims, which has been extensively summarized above, supports petitioner’s claim that counsel failed to afford to petitioner reasonably competent and effective representation by failing to move to suppress the contents of the briefcases seized from the Cusick property prior to trial. In reaching this conclusion the Magistrate acknowledges the fact that it may be true that, by inadvertence, the police reports relating to the seizure of the briefcases were not turned over to counsel and that, as a result, counsel was unaware of the contents of the briefcases until the subject was brought up during the testimony of the first trial witness. The Magistrate believes, however, that the evidence of record reveals it was counsel’s own pre-trial lack of diligence which placed him in the position of being ignorant of the contents of the briefcases until after petitioner’s trial had commenced. Upon first being advised that the prosecutor intended to introduce into evidence the contents of the briefcases, Mr. Demby stated that he “was originally under the impression that none of this stuff was found in the possession of Mr. Moran . but were found by other people when Mr. Moran was not present. . . .” (RT 260) This statement would tend to indicate, contrary to Mr. Demby’s evidentiary hearing testimony, that he was aware of the seizure of the items in question prior to trial. Mr. Demby then stated “I may have misread some, but Mr. Watson has just stated some stuff was found in some lot, and I take it that lot has no connection with Mr. Moran.” (Tr. 260) This statement also suggests Mr. Demby had read some material concerning the items in the briefcases prior to trial. In any event, assuming arguendo Mr. Demby was in fact unaware of the contents of the briefcases prior to trial, the fact is he was not so aware due to his own inaction. Thus, the record reflects that Mr. Demby did not make a formal discovery motion on behalf of petitioner and was content to obtain most of the discovery he received from counsel for a co-defendant. Mr. Demby also admitted he was under a misapprehension concerning whether any property had been seized from any of the defendants. This misapprehension was not surprising in light of the fact Dem-by never accepted the prosecutor’s written invitation (by letter dated October 17, 1974 —Exhibit A to Return) to examine all of the documentary evidence in the hands of the prosecution. Had he promptly accepted this invitation, the police reports relating to the seizure of the property from the Cusicks would have become evident. (RT 950-952) Counsel’s misapprehension was all the less surprising in light of the fact he apparently failed to accept the prosecutor’s oral invitation to examine the physical evidence in the case, including the briefcases and their contents. (RT 953) It also appears Mr. Dem-by may have chosen not to examine the physical evidence in the hands of the prosecutor because he assumed the prosecutor was going to introduce at trial only the evidence that was introduced at the preliminary hearing. The making of such an assumption does not fall within the range of conduct that one would expect from an attorney rendering reasonably effective assistance. People v. Shells, 4 Cal.3d 626, 94 Cal.Rptr. 275, 483 P.2d 1227 (1971). Indeed, Mr. Demby’s admission on several occasions that he had been “sandbagged” by the prosecution further supports the conclusion Demby did not afford petitioner reasonably competent and effective representation pri- or to trial by failing to move to suppress the contents of the briefcases — evidence of which he should have been aware had he engaged in proper investigation and preparation. Moreover, had counsel taken the steps necessary to become aware of the contents of the briefcases prior to trial, he would have been in a position to engage in pre-trial research which, one would hope, would have disclosed the California law that petitioner in fact had standing to move to suppress the briefcases and their contents on the ground they were obtained as the result of an illegal search and seizure. (See discussion, infra.) In sum, the Magistrate has concluded petitioner was denied the reasonably competent and effective representation to which he was entitled when his trial counsel, due to inadequate preparation and investigation, failed to make a motion pursuant to California Penal Code § 1538.5 to suppress the contents of the two briefcases in question. Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962). By concluding petitioner’s counsel failed to render reasonably effective assistance, the Magistrate has necessarily found that counsel failed to act “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). This finding is not enough under Cooper to justify the issuance of a writ of habeas corpus. Thus, before the writ may issue it must also be determined, pursuant to the mandate of Cooper, that counsel’s ineffective representation prejudiced the defense. Although the court in Cooper did not define what it meant by the term “prejudice,” it is clear the term “does not mean that relief is available only if the defendant would have been acquitted but for counsel’s blunders.” (Cooper v. Fitzharris, supra, at p. 1333) Moreover, it should be noted that in discussing one alleged ground of incompetence of counsel raised in Cooper, the court stated that “Even if counsel was negligent in this respect, the error was not prejudicial. . . . ” (586 F.2d at p. 1334) This statement would seem to indicate that the evidence which must be adduced in order to demonstrate “prejudice” under the Cooper test is no greater, and perhaps less, than is required under the traditional harmless error test enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Magistrate believes, Chapman’s harmless error test should be applied in analyzing the concept of prejudice delineated in Cooper. The principle of harmless error (i. e., prejudice) cannot be applied in a vacuum. In other words, the Magistrate believes that before it can be determined in the present case that counsel’s ineffective representation prejudiced the defense, two factors must coalesce, namely, (1) that counsel’s ineffective representation resulted in a potentially meritorious motion to suppress not being made and (2) that if such motion had been made and granted there is a reasonable possibility petitioner would not have been convicted. (Chapman v. California, supra, at p. 23, 87 S.Ct. 824) The Potentially Meritorious Defense Issue Based on the evidence adduced at the evidentiary hearing, it appears that on August 28, 1974 Stanley Cusick, age 19, and a friend were shooting firecrackers in the back yard of the Cusick home located at 11907 Molette in the City of Norwalk. As a result of the noise generated by these firecrackers, a “shots fired” call was broadcast over the police radio network. Shortly thereafter a number of Los Angeles County Deputy Sheriffs responded to the scene. Although there is a factual dispute as to whether the law enforcement officers entered the Cusick back yard with or without consent and whether firecracker debris lay on the ground in the back yard, there is no real dispute with respect to the critical events which transpired after the officers entered the back yard. Thus, it is clear that when the officers arrived in the Cusick back yard, Stanley Cusick and his friend were detained by several of the officers and Deputy Scott in particular. Following this detention, Deputy Sheriff Vega, who had also responded to the scene, observed a pellet gun lying on a table in the back yard. Deputy Vega then smelled the odor of burnt gunpowder in the area of the table on which the pellet gun was lying. He then followed this odor to a shed located at the rear of the Cusick back yard. The odor of gunpowder was strongest by this shed. Vega then looked into the shed, the door of which was open, and then entered it. In the shed he observed a pellet rifle which was broken. He then observed the briefcases which are involved in the present case. These briefcases, contrary to the other items in the shed, were free of dust. Deputy Vega then opened the latched briefcases (one being pried open by Deputy Foote) and looked inside. At the time he opened the briefcases Deputy Vega was purportedly looking for an automatic or semi-automatic weapon. The shed in which the briefcases were found was located 20 to 25 feet away from where Deputy Foote was detaining Stanley Cusick and his friend. Deputy Vega had permission from no one to enter the shed, seize the briefcases, open them, or examine their contents. The evidence also revealed that petitioner’s wife had given the briefcases in question to her friend, Rita, for storage. Rita, who later married James Cusick, asked the latter to store the briefcases. James stored the briefcases in the shed to the rear of his home on Molette, where they remained until discovered by Deputy Vega. Respondent has spent a considerable amount of time defending the seizure and search of the briefcases on the ground Deputy Vega’s action was justified by the existence of a bona fide emergency. Petitioner, on the other hand, disputes the existence of an emergency and argues that the briefcases were seized without consent. The Magistrate believes it is unnecessary to discuss any of these contentions since the determination of the potentially meritorious nature of the Fourth Amendment claim which counsel’s ineffective representation withdrew from the case can be made on a much easier basis. Assuming, without deciding, that the police officers lawfully entered the Cusick back yard and assuming, without deciding, that Deputy Vega properly entered the shed and seized the briefcases, the fact is once the briefcases were in his possession, Stanley Cusick and his friend were being 'detained, and no one was observed in the shed, a strong argument can be made that there was no constitutional justification for opening the briefcases and examining their contents without a search warrant. This appears to be the law today (Arkansas v. Sanders, - U.S. -, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)) and appears to have been the law in both California (People v. Marshall, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665 (1968); see also People v. Hawkins, 273 Cal.App.2d 529, 78 Cal.Rptr. 286 (1969); People v. Mozzetti, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971); and People v. Landa, 30 Cal.App.3d 487, 106 Cal.Rptr. 329 (1973)), and this Circuit (U. S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973); People of the State of California v. Hurst, 325 F.2d 891 (9th Cir. 1963)) at the time petitioner’s case was tried. Based on the foregoing discussion it is clear counsel’s ineffective representation had the effect of withdrawing a potentially meritorious Fourth Amendment Claim. It remains to be seen whether there is a reasonable possibility petitioner would not have been convicted had a motion to suppress the briefcases and their contents been made by counsel and granted by the court. The Reasonable Possibility of Conviction Issue In California the conviction of a person charged with a crime cannot be had upon the testimony of an accomplice unless that testimony is corroborated by such other evidence as tends to connect the defendant with the commission of the offense. (Penal Code § 1111; CT 73.) In the present case the court instructed that “If the crimes charged in this case were committed by anyone, the witness RONALD HAYWARD was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration.” (CT 75) In light of the California law referred to above, it was clear almost from the inception of petitioner’s trial that the critical issue in the case was whether the prosecution would be able to produce sufficient evidence to corroborate Hayward’s testimony. Indeed, when the subject of the introduction of the contents of the briefcases first came up during petitioner’s trial the following colloquy took place between the court and counsel: “THE COURT: Well, let’s get one thing understood here, because I like to proceed on the basis of practicality to the extent that it’s possible in fairness to everybody. “It doesn’t appear to me that there is any contest here that the crimes alleged occurred. “Is that correct, gentlemen? “MR. DEMBY: That’s correct. “THE COURT: I doubt that anybody’s seriously going to contest that this witness participated in them? “MR. FOGEL [counsel for co-defendant]: Absolutely not, Your Honor. “THE COURT: The contest is going to be over whether there’s any corroboration to tie in the other people that he alleges participated with him. “MR. POYET [counsel for co-defendant]: That’s all. “THE COURT: Now, does this physical evidence in some way go to that issue? “MR. WATSON [the prosecutor]: Yes. The prosecution intends to tie it, all the physical evidence I’m talking about, to Mr. Moran. Not Mr. Hayward. We didn’t get it from him.” (RT 257-258) It will be recalled that Hayward testified that he and petitioner committed the Lynn and Hargens offenses together. With respect to the Lynn offense Hayward testified that tape was used on Lynn’s eyes, that Lynn was handcuffed, and that both he and petitioner had guns. With respect to the Hargens offense, Hayward testified that he and petitioner possessed guns and that handcuffs were used. Significantly, Hayward also testified that some of the items in the briefcases (People’s Exhibits 6 and 7) were the same or similar to items used by him and petitioner in committing the Lynn and Hargens offenses. (RT 281 — 288) Hayward’s testimony, standing alone, was insufficient to convict petitioner because of the California law requiring the testimony of an accomplice to be corroborated. In light of this fact there can be little doubt the contents of the briefcases served to corroborate Hayward’s testimony. Indeed, the only remaining question is whether the record reveals that sufficient corroborative evidence of Hayward’s testimony, independent of the contents of the briefcases, was introduced at petitioner’s trial so as to justify the conclusion that the admission of such contents was harmless beyond a reasonable doubt, i. e., there is no reasonable possibility that the admission of the contents of the briefcases contributed to petitioner’s convictions. It must first be observed that neither Lynn nor Hargens, nor anyone else for that matter, was able to identify the perpetrators of either the Lynn or Hargens offenses. Additionally, the statements made by the California Court of Appeal in affirming petitioner’s conviction are most revealing with respect to the corroboration issue. The Court stated: “Here there is evidence which, independently of Hayward’s testimony tends to implicate the defendant in the crimes charged against him. His possession of the fur coat taken in the Hargens robbery connects him with that crime and the others committed along with it. The distinctive modus operandi of the Hargens and Lynn crimes indicates that if defendant committed the Hargens offenses he also committed the crimes against Lynn. Both offenses involved the transportation of a blinded victim to another location from which substantial loot was taken. In both series of criminal conduct the criminal used the highly unusual technique of restraint of the victim by handcuffs. The two sets of crimes were closely connected in time. Adding to that corroboration is defendant’s possession of the tools of kidnapping in the form of handcuffs and adhesive tapes. (Citation omitted.).” (Slip Op., p. 6) Several important points must be made with respect to the above quoted statements by the Court of Appeal. Thus, it is true that a fur coat was taken in the Hargens robbery. It is also true that a witness, one Timmons, testified that co-defendant Papageorge asked him (Timmons) to unload a Simca car (which belonged to petitioner) in 1972 and to get rid of the items located in the car. Timmons testified that he did get rid of all of the items except a fur coat, although he did not tell Papageorge he kept the coat. Timmons also testified that he had a conversation with petitioner about the fur coat. In this conversation, after being advised by Timmons that he (Timmons) had gotten rid of the fur coat, petitioner stated, according to Timmons, that the latter should have kept the fur coat because it was a good one. It is also true, as the Court of Appeal noted, that Timmons’ testimony could have served as corroboration for Hayward’s testimony since the former’s testimony connected petitioner with an item (the fur coat) taken from the Hargens robbery. The Court of Appeal’s statement, however, overlooks the fact that Timmons’ testimony was impeached by the testimony of Hargens himself. Thus, Hargens testified that when he talked to Timmons about the fur coat the latter testified that he had obtained the coat from defendant Papageorge; there was no mention that the coat was obtained from the Simca automobile as Timmons testified at trial. Indeed, Hargens further testified that Timmons told him that when he (Timmons) was given the coat by Papageorge, the latter offered Timmons a choice of coats. The above-quoted statement made by the Court of Appeal on the subject of corroboration is also important because it specifically recognizes the fact that the contents of the briefcases also served to corroborate Hayward’s testimony. A number of other factors appear of record which leave little doubt that the contents of the briefcases played an important part in corroborating Hayward’s testimony. Thus, when the subject of the briefcases first came up the prosecutor indicated the evidence was going to be used to corroborate Hayward’s testimony. (RT 257-258) Subsequently, in arguing against the grant of the motion for judgment of acquittal made on behalf of petitioner, the prosecutor relied on the contents of the briefcases to defeat the motion. (RT 730) In addition to the foregoing evidence, it is patently clear that it was the issue of corroboration that so bothered the jury that it was required to deliberate for nine days before reaching verdicts. The record reveals that after the jury had been deliberating for almost six days it sent a note to the court requesting further clarification of the law relating to corroboration (RT 847), whereupon the court made further statements on this subject. (RT 859-862) On the seventh day of deliberation the jury returned to the courtroom and the trial judge, after inquiry, discovered the jury had taken sixty-six total ballots without reaching a verdict as to either petitioner or his remaining co-defendant (Papageorge). During this proceeding the jury foreman, upon further inquiry by the court, indicated it was the issue of corroboration that was causing the jury problems. (RT 878-879) Finally, whatever doubt may have existed with respect to the role the briefcases and their contents played in corroborating Hayward’s testimony was dispelled by the trial judge’s comments made during the hearing on petitioner’s motion for a new trial. The court stated: “As to the briefcases, and their contents, it does appear to the Court that the conclusion must be reached that they had some part to play in the defendant Moran’s conviction of the Heckle Lynn matter, because as I look back over the case now, there is at best slight corroboration as to the Heckle Lynn incident . “So, I am led to the conclusion that logically it would appear that the evidence must be said to have in all probability contributed as to Mr. Moran’s conviction of those counts. “I feel that the element of corroboration in the Heckle Lynn matter, which I believe was count I, II and III— “MR. DEMBY: I believe it may also have been count IV. “THE COURT: Yes, the first four counts. “That the element of corroboration as to those four counts is slight. Even overcoming any objection to the introduction of the briefcase and its contents, the evidence is still slight. “The Court did its best to instruct the jury on the issue of corroboration as it appears to be mandated by the appellate decision, but I must again say that they are not exactly a well-defined road map. “Some of the course markings seem to lead you into a dead end or a detour, at best. “And I will say this very frankly, if that were the only conviction before me, it is conceivable that I might feel differently. “What I’m saying is that I hope I am not subconsciously influenced by the fact that Mr. Moran stands convicted of the Donovan Hargens matters and as I will state in just a moment, I see no grounds for a new trial as to the Hargens case. “Therefore, it seems to me, that from a practical standpoint, no purpose would be served by a reversal as to the Heckle Lynn matters. “But, despite that, I am trying to set aside and simply rule on the Heckle Lynn as though it were standing alone. Even though, as I say, because of my ruling in the Hargens case, it doesn’t appear to me that whether Mr. Moran is convicted or not of the Heckle Lynn matter is going to make much difference. “I consider the issue of — as far as this Court is concerned, there is only one cogent issue as to the granting of a new trial in Count I. And that is whether there is sufficient evidence to corroborate Hayward. “I think that it’s a very close question as to whether what’s present there is sufficient under the law for corroboration. I think it is. “But, it certainly wouldn’t surprise me to take a poll of 100 judges and find 50 who thought it wasn’t.” (RT 262-264) In sum, it is quite clear, as the trial judge pointed out, that absent the briefcases and their contents almost no evidence was introduced to corroborate Hayward’s testimony with respect to the Lynn offenses. It is clear, therefore, that it must be concluded there is a reasonable possibility that the admission into evidence of such evidence contributed to petitioner’s conviction of the Lynn offenses. Although Timmons’ testimony concerning the fur coat provided corroboration with respect to the Hargens offenses that was not present in the Lynn offenses, it is also a fact, as pointed out by petitioner, that Timmons “was himself impeached by victim Hargens on the issue of where and how Timmons got the fur coat. The jury could therefore have disbelieved Timmons completely with respect to the defendant’s involvement with the fur coat, but convicted defendant because of Hayward’s testimony alone as corroborated by the briefcase evidence.” (Corrected Supplemental Points and Authorities filed April 17, 1979, at pp. 1314). In light of these facts the Magistrate is constrained to conclude there is a reasonable possibility that the admission into evidence of the contents of the briefcases contributed to petitioner’s convictions of the Hargens offenses. Moreover, since the conspiracy count of which petitioner was convicted (Count X) was based on the evidence introduced in connection with the underlying substantive offenses, it is clear petitioner is entitled to the issuance of a writ of habeas corpus with respect to all of the offenses of which he was convicted. Petitioner’s Claim of Incompetence of Counsel During Trial Even had the Magistrate not concluded petitioner’s trial counsel failed to render reasonably competent and effective assistance prior to trial, he would have concluded counsel failed to render such assistanee during trial. The evidence of record reveals, as indicated above, that the subject of the introduction of the contents of the briefcases first arose when Hayward, the first trial witness, was on the witness stand. After some colloquy occurred a recess was taken. (RT 262) Following this recess petitioner’s counsel stated that since the briefcases were not seized from petitioner, “I don’t feel I have a motion there.” (RT 263) There can be no doubt counsel’s statement was based on his ignorance of the California law relating to the standing required to raise an illegal search and seizure claim. Indeed, counsel admitted his ignorance of this law at the evidentiary hearing. While the law is different in many other jurisdictions, including the federal courts (see, e. g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)), the law in California at the time of petitioner’s trial, and indeed now, is that anyone against whom evidence is sought to be introduced may raise the claim that the evidence was obtained as the result of an illegal search and seizure. People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955); Kaplan v. Superior Court, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1 (1971). It appears, therefore, that counsel failed to make a motion to suppress the contents of the briefcases when first confronted with them during trial, even though he was aware he could make a motion during trial if he could demonstrate the motion was based on newly discovered evidence, because he was uninformed of California law relating to standing. By failing to make an in-trial motion to suppress under such circumstances, it is clear counsel failed to afford the assistance reasonably expected of an attorney in a criminal case. Since, as was discussed above in connection with petitioner’s claim of pre-trial incompetence, counsel’s ineffectiveness prejudiced the defense (Cooper v. Fitzharris, supra), petitioner is also entitled to relief on his claim of in-trial incompetence. It should be noted that respondent argues that since counsel was under a misapprehension as to the state of the California law relating to the standing required to raise Fourth Amendment claims, no federal constitutional question is presented for review in this court. Respondent’s argument is wholly without merit. Thus, it is perfectly clear that counsel’s performance in a state court can be deemed ineffective within the meaning of the Sixth Amendment even though counsel’s action or inaction resulted in depriving the defendant of a defense recognized only under state law. Brubaker v. Dickson, supra; Wilson v. Reagan, 354 F.2d 45 (9th Cir. 1965). It is the denial to the defendant of the effective assistance of counsel, and not whether counsel’s lack of diligence resulted in the defense being deprived of a defense recognized only by state law, that is significant for Sixth Amendment purposes. It should also be noted that respondent contends petitioner was not prejudiced due to counsel’s failure to advance a Fourth Amendment claim on behalf of petitioner and bases his contention in part on the following reasoning: “On the other hand, defense counsel also admitted that he was aware of a cassette tape recording damaging to his client that was contained in the briefcases seized at the Cusick residence. Defense counsel was worried that if he made a motion to suppress the evidence and the motion was denied, the prosecutor could then introduce the evidence of the tape, despite his claim that he did not intend to use it as evidence. By failing to make the motion to suppress, it is reasonable that defense counsel decided that evidence of the briefcases containing items such as adhesive tape, handcuffs, tools was less damaging than evidence of the cassette tape . . . Therefore, there appears to be a legitimate tactical reason for defense counsel’s failure to make the motion to suppress the evidence of the briefcases.” (Respondent’s Supplemental Points and Authorities in Support of Return to Petition for Writ of Habeas Corpus by a Person in State Custody, filed March 15, 1979, at pp. 8-9) Respondent’s argument is unpersuasive for several reasons. First, the argument flies in the face of Mr. Demby’s evidentiary hearing testimony that his failure to move to suppress the contents of the briefcases was not based on a tactical decision made by him. Second, the record developed at the evidentiary hearing reveals that the prosecutor specifically advised Demby that he (the prosecutor) would not introduce the tape recording and that the tape recording was not in fact introduced, in spite of the fact a number of other items from the briefcases were introduced. Based on this record it cannot be concluded Demby failed to move to suppress the contents of the briefcases based on a tactical decision. Claims of Incompetence of Counsel not Related to the Fourth Amendment Petitioner has presented two additional claims of incompetence of counsel which are unrelated to the Fourth Amendment and which must be addressed by the Magistrate. These claims are: 1. Although urged by the petitioner to do so, trial counsel failed to subpoena petitioner’s jail records from the Costa Mesa City Jail and the Orange County Jail in order to determine if petitioner was incarcerated at a time that a crucial meeting took place between petitioner and the chief witness against him. 2. That trial counsel failed to obtain the police reports concerning a complaint by the witness Timmons of a burglary occurring at his premises in 1974, which burglary may have been the basis for the witness’ revenge motive in attributing a damaging statement to the petitioner. Prior to addressing these claims on the merits it must be observed that respondent contends such claims are not properly before this Court since petitioner has failed to exhaust state remedies with respect thereto. Respondent’s contention that petitioner has failed to exhaust state remedies is without merit. Respondent does not contend that petitioner failed to exhaust state remedies because he did not present his claims to the California Supreme Court. Rather, respondent contends that because the Supreme Court of California and the United States Court of Appeals for the Ninth Circuit changed their respective tests for judging the incompetence of counsel subsequent to petitioner’s presentation of his claims to the California Supreme Court, petitioner should be required to return to the California Supreme Court and present his claims for review under the new tests. As indicated, there is no merit to respondent’s contention. It is true, as respondent argues, that the California Supreme Court and the Ninth Circuit changed their respective competence of counsel tests after petitioner presented the claims under discussion to the former court. Thus, as has been previously indicated, in Cooper v. Fitzharris, supra, the court held that the test to be employed in this Circuit for judging a criminal defense attorney’s competence is whether the attorney rendered reasonably competent and effective assistance. Similarly, in People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) the California Supreme Court abandoned the “farce and sham” test and held that a criminal defense attorney’s performance is to be judged by the standard of whether he afforded reasonably competent representation. It is unnecessary to decide whether the test enunciated in Cooper is the same, similar to, or different than the one set forth in Pope because, in any event, the Cooper test is not binding on the California courts. Thus, it is clear that absent a pronouncement from the United States Supreme Court that a particular test for judging the competence of a defense lawyer in a criminal case must be employed by the state courts, the states are free to develop their own tests. Since the Magistrate is not aware of any such test that has been mandated by the United States Supreme Court, it is clear California was free to adopt the test it did adopt in Pope. It is also clear it would be futile to return this case to the California Supreme Court in light of Cooper since that court would not be bound by Cooper in any event. People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969). Nor is petitioner required to return to the California Supreme Court in order for it to be concluded he has exhausted state remedies, even though it is true the court in Pope enunciated a new test for evaluating a criminal defense attorney’s competence. Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 26 (1974). Turning to the merits of petitioner’s claim that his counsel was incompetent in that he failed to subpoena petitioner’s jail records, it appears, but is by no means certain, that petitioner is contending that if his jail records had been subpoenaed by his counsel they would have shown petitioner was in jail at the time Hayward testified he and petitioner first met (in January or February 1971). Assuming arguendo counsel was negligent in not subpoenaing these records, it does not appear this negligence prejudiced the defense. Hayward testified that he first met petitioner in January or February 1971. Whether this was true or not does not seem to make much difference in light of the fact there was a substantial amount of other evidence introduced at petitioner’s trial which placed petitioner in the company of Haywood on a n