The opinion of the court was delivered by: Will, District Judge.
Petitioner appealed his conviction to the Illinois Appellate
Court and that Court affirmed. People v. Mayfield, 69 Ill. App.2d 388,
217 N.E.2d 100 (Abstract Decision, 1966). Subsequently he
filed a petition pursuant to the Illinois Post-Conviction Hearing
Act. Ill.Rev.Stat., ch. 38, section 122-1 et seq. (1967). The
State then filed a motion to dismiss and it was granted. Among
the issues raised by petitioner therein was the claim that the
search warrants had been improperly executed and that the
warrants as issued violated petitioner's constitutional rights.
Petitioner appealed this dismissal. The Illinois Supreme Court
affirmed the order of the Circuit Court of Cook County. People v.
Mayfield, 42 Ill.2d 318, 247 N.E.2d 415 (1969).
Petitioner requests this Court to review his incarceration and
to grant his petition for habeas corpus pursuant to 28 U.S.C. § 2241
et seq. Finding that petitioner had exhausted his state
remedies on the assertion of unlawful search and seizure, this
Court ordered respondent Frank J. Pate, Warden, by his attorney,
William J. Scott, to answer a rule to show cause why a writ of
habeas corpus should not issue.
Respondent contends and the Court agrees that the thrust of
petitioner's argument is that the search warrants sworn to and
executed by the informant were "secured under a fictitious name."
See, People v. Mayfield, 42 Ill.2d 318, 247 N.E.2d 415 (1969).
Petitioner relies upon the decision of the Seventh Circuit Court
of Appeals in United States ex rel. Pugh v. Pate, 401 F.2d 6
(1968). Pugh held that fictitious signatures on an affidavit for
a search warrant rendered that warrant void. It is the State's
position that, since petitioner has not stated any of the facts
surrounding the alleged fictitious name, it is unable to
comprehend the exact nature of the allegation.
Without examining the merits of the State's position, this
Court is of the opinion that, even if the Pugh case was precisely
on point, petitioner still could not prevail because that holding
is without retroactive application. Petitioner's trial was
concluded in June, 1964. The Pugh decision was rendered by the
Seventh Circuit on July 1, 1968. Therefore, unless that decision
is to be retroactively applied, no constitutional question here
This question has been previously considered by a member of
this Court in United States of America ex rel. William Smith v.
Pate, 305 F. Supp. 225. There, on February 26, 1969, Judge Robson
dismissed a habeas corpus petition with a written memorandum
The Pugh decision is directed at police procedure in
procuring search warrants and does not affect "the
very integrity of the fact finding process," nor does
it avert "the clear danger of convicting the
innocent." Therefore, the Pugh doctrine should not be
retroactively applied. The petitioner's
constitutional rights were not violated under the
Illinois decisions applicable prior to Pugh. See
People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609 (1957,
Memo. Opin. pp. 4, 5).
We agree with Judge Robson's conclusions.
In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16
L.Ed.2d 882 (1966), the Supreme Court laid down, what at this
point, are the controlling criteria with respect to
retroactivity. There the Court held that a constitutional
doctrine or legal rationale was to be retroactively applied when:
Based on these criteria, various Supreme Court rulings on
constitutional rights have or have not been held retroactive. The
Mapp rule, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081, 84 A.L.R.2d 933 (1961), which excluded evidence obtained
via an unreasonable search and seizure was denied retroactive
application in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731,
14 L.Ed.2d 601 (1965), on the ground that the purpose of the
exclusionary rule enunciated in Mapp was to guard against
prospective unreasonable searches and seizures. On the other
hand, denials of constitutional rights relating to the actual
integrity of the trial have been held to be retroactive. For
example, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799, 93 A.L.R.2d 733 (1963), where an indigent was
required to be furnished counsel at trial; Jackson v. Denno,
378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964),
which held that an involuntary confession had to be excluded from
the trial in a hearing outside the presence of the jury. These
latter instances of constitutional deprivation were held
retroactive because otherwise the fact finding process would be
In the Johnson case, supra, 384 U.S. at 728, 86 S.Ct. 1772, the
Court stressed that a choice between retroactivity and
non-retroactivity is not to be predicated upon the value of the
constitutional guarantee involved. The position then is that a
constitutional guarantee is neither disparaged nor compromised in
any manner whatsoever when a court refuses to apply it
retroactively. In this regard, it is necessary to reiterate ...