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September 12, 1979

EDUARDO CRUZ, Petitioner,
ROBERT ALEXANDER and EDWARD HAMMOCK, Chairman of the New York State Department of Parole, Respondents.

The opinion of the court was delivered by: SWEET

Petitioner Eduardo Cruz ("Cruz") was convicted of possession of explosive substances in the New York Supreme Court, and was sentenced in 1971 to a term of seven years. His conviction was affirmed by the Appellate Division, People v. Cruz, 41 A.D.2d 1027, 343 N.Y.S.2d 786 (1st Dep. 1973), and by the New York Court of Appeals, People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314 N.E.2d 39, Mod., 35 N.Y.2d 708, 361 N.Y.S.2d 641, 320 N.E.2d 274 (1974).

In this habeas corpus proceeding, brought under 28 U.S.C. § 2254 (1976), petitioner seeks to set aside his conviction on the grounds that it was obtained in violation of the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 Et seq. (1976), ("Title III") and the Sixth and Fourteenth Amendments to the United States Constitution. *fn1" Cruz claims that both he and his counsel were subjected to illegal electronic surveillance prior to and during his trial and that the State of New York must affirm or deny the existence of such surveillance. Cruz bases this asserted right to compel the state to respond to his claim on Title III, 18 U.S.C. §§ 2515, 2517(4) (1976), and the Sixth Amendment as incorporated by the Fourteenth Amendment.

Cruz moved on five occasions during his trial and also on appeal to the New York Appellate courts to have the government disclose whether it had engaged in electronic surveillance. He alleged that the prosecuting attorney twice revealed information at trial which could only have been obtained from surveillance.

 Before reaching the merits of petitioner's claim, this court must consider whether the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), bars the review of petitioner's claims. This court finds that Stone does not bar review of Cruz's petition for two reasons. First, the Court in Stone limited the availability of habeas corpus relief only for state prisoners who allege violations of their Fourth Amendment rights. Here, by contrast, petitioner's claims arise under Title III and the Sixth Amendment. The carefully restricted holding in Stone does not apply to these claims. Second, even assuming that Stone were to be applied to petitioner's claims, habeas relief would not be precluded, since petitioner did not receive "an opportunity for full and fair litigation" of his claims in the New York State courts. Id., 428 U.S. at 494, 96 S. Ct. at 3052.

 The Supreme Court in Stone v. Powell held that Federal habeas corpus relief under 28 U.S.C. § 2254 was not available to state prisoners who allege that evidence was introduced at their trial in violation of the Fourth Amendment exclusionary rule. Concluding that the judicial costs of applying the Fourth Amendment's exclusionary rule in habeas cases outweigh the minimal deterrent effect on unlawful police conduct from applying the rule, the Court held:

(W)here 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.

 Id. at 494, 96 S. Ct. at 3052. The Court carefully restricted its holding to habeas corpus petitions based on the Fourth Amendment. It stated that its decision did not concern "the scope of the habeas corpus statute as authority for litigating constitutional claims generally." Id. at 495 n.37, 96 S. Ct. at 3052-3053.

 The Supreme Court has not extended its Stone decision beyond Fourth Amendment habeas claims. It has declined to use the Stone standard in adjudicating habeas corpus claims not based on the Fourth Amendment. See, e.g., Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); Castaneda v. Partida, 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977); Wainwright v. Sykes, 433 U.S. 72, 87 n.11, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). The lower federal courts in this and other circuits have followed the Supreme Court in restricting Stone to Fourth Amendment claims. See, e.g., United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977), Cert. denied, 434 U.S. 1072, 98 S. Ct. 1257, 55 L. Ed. 2d 776 (1978). They have continued to review claims by habeas corpus petitioners based on violations of the federal wiretapping statute *fn2" and the Sixth Amendment *fn3" the two claims raised by petitioner in this case as well as double jeopardy, *fn4" self-incrimination, *fn5" due process, *fn6" and cruel and unusual punishment. *fn7"

 Cruz bases his habeas petition on Title III and the Sixth Amendment. Neither of these claims is barred by Stone v. Powell. Title III, 18 U.S.C. § 2515 (1976), provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

 Claims based on Title III are independent of Fourth Amendment claims and therefore not subject to the Stone decision. See Losinno v. Henderson, 420 F. Supp. 380 (S.D.N.Y.1976) (Weinfeld, J.). See also Alfano v. United States, 555 F.2d 1128 (2d Cir. 1977), and Vitello v. Gaughan, 544 F.2d 17 (1st Cir. 1976), Cert. denied 431 U.S. 904, 97 S. Ct. 1696, 52 L. Ed. 2d 388 (1977) (deciding Title III based habeas claims without considering the Fourth Amendment or the constraints of Stone ). The exclusionary rules of § 2515 and of the Fourth Amendment are different in their origins and purposes. The latter is a judicially created rule designed to protect Fourth Amendment rights and, in particular, to deter future police misconduct. See Stone, supra, 428 U.S. at 482, 486, 96 S. Ct. 3037; United States v. Calandra, 414 U.S. 338, 347-48, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The judicial origin of the Fourth Amendment exclusionary rule makes it possible for courts to modify the rule, as was done in Stone. *fn8" In contrast, the Title III exclusionary rule was created by Congress as part of a comprehensive scheme of criminal and civil sanctions. Only Congress has the power to change the statutory rule in § 2515. See Losinno, supra at 385 n.19. *fn9"

 Under the test enunciated in Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109 (1974), a federal statutory claim "which lack(s) a constitutional dimension" may be collaterally reviewed if it raises "a fundamental defect which inherently results in a miscarriage of justice" and if it presents "exceptional circumstances where the need for the remedy afforded by the writ of Habeas corpus is apparent." Petitioner's Title III claim meets this test. The violation that Cruz alleges is absolutely prohibited by § 2515, a key provision of Congress's ambitious wiretapping statute. *fn10" A conviction based on evidence obtained in violation of that statute is fundamentally defective and results in a miscarriage of justice.

 Cruz's claim of illegal surveillance also implicates his Sixth Amendment right to the effective assistance of counsel. Illegal electronic surveillance violates a defendant's Sixth Amendment right to counsel whether it involves conversations between the defendant and his lawyer, *fn11" counsel and third persons, *fn12" or the defendant and third persons. *fn13"

 Cruz claims that the government may have wiretapped additional discussions concerning his defense that he and his counsel had with one another and with third persons. Cruz also has made specific allegations of government wiretapping of conversations between his counsel and third parties. *fn14" An illegal wiretap of such conversations, including discussions of legal strategy and other confidential matters, constitutes a serious violation of a defendant's ...

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