CA7: Unavailable witness does not enable reopening suppression hearing on post-conviction under Stone

Defendant’s claim in a § 2255 post conviction that he did not have access to a critical witness that might show the search and seizure was illegal was not cognizable in a post-conviction proceeding where the defendant had a full and fair opportunity to litigate, absent a claim that the government was responsible for hiding the witness. The deterrent purpose of the exclusionary rule, also discussed in Stone, is not served by enabling the defendant to reopen the suppression hearing after the conviction is affirmed. Brock v. United States, 573 F.3d 497 (7th Cir. 2009):

Brock’s second argument is that this Court has summarized the opportunity for full and fair litigation of a Fourth Amendment claim by stating that it “guarantees the right to present one’s case, but it does not guarantee a correct result.” Cabrera, 324 F.3d at 532. Brock claims that he was denied the right to present his case because he has not been able to introduce this new evidence. But, read in context, Cabrera’s “right to present one’s case” simply refers to the right to have a judge listen to and consider the evidence a party actually presents at trial. It is the right to have a judge who has not closed his mind to the issues, is not bribed or sleepwalking, and is not “in some other obvious way subvert[ing] the hearing.” Id. at 531. Cabrera did not consider whether an opportunity for full and fair litigation requires that the evidence necessary to make the party’s best claim be available by the time of trial.

Most importantly, neither of these arguments bears upon the central issue in Stone and the one which we must ultimately decide: whether the deterrent benefit of applying the exclusionary rule in a particular situation outweighs the social costs of letting the guilty go free, expending limited judicial resources, and disturbing finality in criminal trials. Stone, 428 U.S. at 489-90, 491 n.31 (citation omitted). The deterrent calculus articulated in Stone is not dependent on when evidence surfaces, as long as the trial was administered in a just manner. Police mis-conduct will not be materially checked by fear that Fourth Amendment violations that go undiscovered during trial, appeal, and the three-year time period to file a motion for a new hearing, Fed. R. Crim. P. 33(b), will be discovered and used in a § 2255 motion, at least when there is no allegation that the officers prevented the defendant from finding the evidence. See Stone, 428 U.S. at 493. Any “additional incremental deterrent effect” this might have “would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.” Stone, 428 U.S. at 493-94; see id. at 490 (“[T]he physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.”).

Brock makes no claim that his trial or appeals were not fairly administered or that the government prevented him from locating Godsey. His unfortunate circumstance is that, for whatever reason, he did not locate Godsey until it was too late. Stone prevents Brock from bringing this § 2255 motion solely on the ground that newly discovered evidence would have triggered the exclusionary rule if presented earlier.