
    Charles H. HAUGH, Warden, Men’s Reformatory, Anamosa, Iowa, Appellant, v. Edward J. CRAIG, Appellee.
    No. 18038.
    United States Court of Appeals Eighth Circuit.
    Oct. 13, 1965.
    Lawrence F. Scalise, Atty. Gen. of Iowa, and Don R. Bennett, Asst. Atty. Gen., filed brief and Donald A. Riley, Asst. U. S. Atty. Gen., made argument, for appellant.
    Robert H. Story, of Remley & Heiser-man, Anamosa, Iowa, for appellee.
    Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.
   PER CURIAM.

Edward J. Craig, appellee, is a state prisoner confined in Men’s Reformatory, Anamosa, Iowa, under a ten-year prison term, which was imposed following the finding by a jury on September 30, 1959, that Craig was guilty of the offense of uttering a forged instrument. The judgment of conviction was affirmed by the Supreme Court of Iowa on December 13, 1960. State v. Craig, 252 Iowa 290, 106 N.W.2d 653.

Following Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided June 19, 1961, which held that the States are required by the Due Process Clause of the Fourteenth Amendment to exclude evidence seized in violation of the search and seizure provisions of the Fourth Amendment, appellee sought his release by a petition for writ of habeas corpus filed in a state district court of Iowa, alleging applicability of the Mapp rule. This petition was denied. The Supreme Court of Iowa refused to review the proceeding, by order entered November 12, 1962, and the Supreme Court of the United States denied petition for certiorari on March 18, 1963. Craig v. Bennett, 372 U.S. 521, 83 S.Ct. 888, 9 L.Ed.2d 966.

Appellee then instituted this proceeding by filing a petition for writ of habeas corpus in the United States District Court for the Northern District of Iowa, on January 11, 1965. This petition was predicated upon the claim that evidence, obtained by a search and seizure which was violative of the Fourth Amendment, was admitted in the state trial and that the admission of such evidence resulted in his conviction. On April 21, 1965, after a hearing, the District Court, Honorable Edward J. McManus, found that appellee had exhausted all post-conviction remedies available in the Iowa state courts; that the search of the hotel room, which had been occupied by appellee, was unreasonable and in violation of the search and seizure provisions of the Fourth Amendment; and that the evidence obtained by the unreasonable search and seizure contributed to appellee’s conviction in the state court. The court applied the rule of Mapp v. Ohio, supra, retroactively and granted the writ. The district court’s findings of fact and conclusions of law are reported. Craig v. Haugh, 242 F.Supp. 775. The warden of the institution in which appellee is confined has appealed.

The main issue for our determination is whether, in view of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, decided by the Supreme Court on June 7, 1965, the district court erred in holding that Mapp v. Ohio, supra, should be applied retroactively, even though the state court conviction had become final before Mapp was decided.

The split of authority that developed in the courts of appeals (see footnote 2, Linkletter, supra,) concerning the retro-spectivity of Mapp, caused the Supreme Court to grant certiorari “in order to settle what has become a most troublesome question in the administration of justice.” Linkletter v. Walker, supra, at 620, 85 S.Ct. at 1732. The Court noted at the outset of its opinion that “[t]his case presents the question of whether this requirement operates retrospectively upon cases finally decided in the period prior to Mapp”, Id., at 619-620, 85 S.Ct. at 1732, and again “[tjherefore, in this case, we are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.” Id., 622, 85 S.Ct. at 1734.

After an exhaustive consideration of all facets of the question, the Court reached the conclusion that the Mapp exclusionary rule does not operate retrospectively upon cases finally decided in the period prior to Mapp. “After full consideration of all the factors we are not able to say that the Mapp rule requires retrospective application.” Id., at 640, 85 S.Ct. at 1743.

Appellee concedes that his conviction had finally terminated prior to Mapp, but contends that Linkletter does not prohibit retroactive application of the Mapp rule. He argues that Linkletter simply stands for the proposition that the Mapp rule does not require retrospective application. We disagree with this ingenious argument and hold that, on the authority of Linkletter, the exclusionary principle enunciated in Mapp does not apply to appellee’s case.

If, as appellee contends, Linkletter neither prohibits nor requires retrospective application of the exclusionary rule, the effect of Linkletter would be to leave the question of retroactivity to the discretion of each court. Under such an interpretation, Linkletter would do little, if anything, to remedy the split of authority which existed in the courts of appeals. Certainly that split of authority was a motivation for the Supreme Court’s consideration of the Linkletter case. Therefore, the Court’s opinion should not be interpreted in a way which would nullify a resolution of the conflict among the courts as to the retrospectivity of the Mapp rule. Manifestly, the Supreme Court intended to, and did, put to rest the question before us by holding unequivocally that the exclusionary principle does not apply to state court convictions which had become final before Mapp was decided.

The order appealed from is reversed, and the cause remanded, with directions to dismiss appellee’s petition.  