447 F.2d 733 (7th Cir. 1971), 17817, United States ex rel. Somerville v. State of Ill.

Docket Nº:17817.
Citation:447 F.2d 733
Party Name:UNITED STATES of America ex rel. Donald SOMERVILLE, Petitioner-Appellant, v. STATE OF ILLINOIS, Respondent-Appellee.
Case Date:July 20, 1971
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 733

447 F.2d 733 (7th Cir. 1971)

UNITED STATES of America ex rel. Donald SOMERVILLE, Petitioner-Appellant,

v.

STATE OF ILLINOIS, Respondent-Appellee.

No. 17817.

United States Court of Appeals, Seventh Circuit.

July 20, 1971

Rehearing Denied Sept. 3, 1971.

Ronald P. Alwin, Martin S. Gerber, Chicago, Ill., for petitioner-appellant.

Morton Friedman, Thomas J. Immel, Asst. Atty. Gen., William J. Scott, Atty. Gen. of the State of Illinois, James B. Zagel, E. James Gildea, Asst. Attys. Gen., Chicago, Ill., for respondent-appellee.

Before MAJOR and CASTLE, Senior Circuit Judges, and FAIRCHILD, Circuit judge.

MAJOR, Senior Circuit Judge.

This case had its genesis by way of a petition for habeas corpus filed in the district court by Donald Somerville, which asserted that he was being held in custody unlawfully pursuant to a sentence imposed in a trial which subjected him to double jeopardy, in violation of the Fifth Amendment. It was alleged that Somerville had been placed in jeopardy by reason of a previous state court charge which was dismissed on motion of the government, after a jury had been impaneled and sworn to try the case. The district court dismissed the petition for failure to state a claim upon which relief could be granted. From such dismissal Somerville appealed to this court.

The principal issue involved the interpretation and effect to be given Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. This court, with one judge dissenting, in an opinion rendered May 14, 1970, held that Downum was not applicable and affirmed the district court's order of dismissal. United States ex rel. Somerville v. State of Illinois, 429 F.2d 1335.

On January 25, 1971, the Supreme Court decided United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543.

Page 734

On Somerville's petition for writ of certiorari, that court on April 5, 1971 entered an order which in material part provided:

'The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for reconsideration in light of United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, decided January 25, 1971; and Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).'

After receipt of the mandate, we requested...

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