Anthony CROWELL, Appellant, v. Robert F. ZAHRADNICK, Superintendent of the Virginia State Penitentiary, Appellee, 571 F.2d 1257

WIDENER, Circuit Judge: Anthony Crowell appeals from the denial of his petition for habeas corpus, wherein he raised two claims: that he was arrested without probable cause to believe that he had committed an offense, and that there was insufficient evidence to support the conviction. The district court found, with respect to the claim of lack of probable cause, that Crowell had not yet exhausted his state remedies. However, the court proceeded to find there existed ample evidence to show that neither claim possessed merit.

On appeal to this court, Crowell does not take exception to the holding of the district court that there was evidence sufficient to support the conviction, but has injected into the case a new issue, the admission into evidence of inculpatory statements made while in police custody. He argues before us that the admission of the statements violated the Fourth Amendment because the statements were obtained after an illegal arrest. He also maintains, for the first time, that the confessions were not voluntary because of allegedly illegal conduct of the interrogating officers.

We agree with the district court that the petitioner has not exhausted his state remedies. He has not litigated the admissibility of the statements on constitutional grounds in the Virginia courts or in the district court, raising it for the first time here. No objection was made at trial to the use of the statement, so, of course, no reasons for the objection were given.

Moreover, neither the constitutional issue nor even the admissibility of the statement was raised in his direct appeal to the Virginia Supreme Court as the notice of appeal indicates and his brief admits, nor was either raised in a state habeas corpus proceeding. As the petitioner’s constitutional claim has been raised initially in the federal courts on appeal from the dismissal of his petition for habeas corpus, Crowell has failed to exhaust the state remedies available to him, 28 U.S.C. § 2254, and the decision of the district court dismissing the petition is AFFIRMED, .

Crowell argues that he has exhausted the possibility of appeal in the state courts because of state procedural bars to his claim. Specifically, he says he could not raise the constitutional objections in his appeal to the Virginia Supreme Court because he did not make objection to the introduction of the statement and was barred by the Virginia contemporaneous objection rule found in Rule 5:7 (as amended now 5:21) of the Rules of the Supreme Court of Virginia.

The rule in effect at times pertinent here provided that ordinarily error would not be noticed unless the ground for objection was stated with reasonable certainty in the trial court, and also that only errors assigned in the notice of appeal and assignments of error would be noticed on appeal. That argument presents an alternative ground for affirming the decision of the district court. As we see no distinction between the present case and the recent decision in Wainwright v.

Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), we find neither the cause nor prejudice necessary for relieving Crowell of the requirements of the Virginia rule. Crowell’s claim is therefore barred by independent state procedural grounds. Wainwright, supra. Wainwright also answers Crowell’s claim that the trial court was under an obligation to, su a sponte, examine the voluntariness of a proffered self-incriminating statement of the accused, when the defendant fails to object. At pp. 85-91, 97 S.Ct. at pp. 2505-2509. .

Even if barred by the contemporaneous objection rule from maintaining a direct appeal, and, to some extent, a state petition for habeas corpus relief, it appears that state habeas relief is available if the petitioner can show that the failure to make the objections to the admission of the inculpatory statements was the result of inadequate assistance of counsel. See Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 681 (1974), cert. den. Parrigan v. Paderick, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1974); Ferguson v. Superintendent, 215 Va. 269, 208 S.E.2d 749 (1974).

If the error in Crowell’s trial was as apparent as he now makes it out to be, he could doubtless present a colorable argument claiming that the failure to make the objections to the use of the statements deprived him of adequate assistance of counsel. Thus, we cannot say, on these facts, that resort to state habeas corpus proceedings would be futile, and because Crowell may present a colorable claim in a state habeas corpus petition, he has failed to exhaust state remedies. See Spencer v. Cundiff, 413 F.Supp. 1246 (W.D.Va.1976). .

As we have noted, Crowell did not raise the issue of the admissibility of the inculpatory statements until he briefed the appeal to this court.

His petition for habeas corpus relief as it addressed this point merely complained of “No Probable Cause for Arrest — The Prosecution never presented any evidence or testimony showing how or why Petitioner was originally arrested for the crime for which he was convicted.” Ordinarily, a claim of illegal arrest presents no ground for habeas corpus relief when a convicted criminal defendant does not claim that he was denied a fair trial by the introduction of evidence which came from the illegal arrest. Roundtree v. Riddle, 417 F.Supp. 1274 (W.D.Va.1976).

Since Crowell made no claim concerning the admissibility of the statement in the district court and until the issue was presented to this court, as a third alternate ground for our decision, we adhere to our precedent that we will not ordinarily consider an issue not presented to the district court when it is raised for the first time on appeal. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970). We also note additional authority sustaining the district court’s ruling that state remedies had not been exhausted. Picard v.

Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), requires that “the federal claim [must] be fairly presented to the state courts.” p. 275, 92 S.Ct. p. 512. The federal claims here were not so presented.