Robinson v. Neil

• Citation: 452 F.2d 370
• Decision Date: 10 December 1971
• Docket Number: No. 71-1138.,71-1138.
• Parties: Samuel Ed ROBINSON, Petitioner-Appellee, v. William S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

452 F.2d 370 (1971)

Samuel Ed ROBINSON, Petitioner-Appellee, v. William S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellant.

No. 71-1138.

United States Court of Appeals, Sixth Circuit.

December 10, 1971.

Edward E. Davis, Dist. Atty. Gen., Chattanooga, Tenn., for respondent-appellant; David M. Pack, Atty. Gen. for the State of Tenn., Nashville, Tenn., on brief.

James D. Robinson, Chattanooga, Tenn. (Court appointed), for petitioner-appellee.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and CECIL, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

The sole issue presented by this appeal is whether the recent United States Supreme Court decision, Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), declaring an end to the "dual sovereignty" theory with respect to criminal prosecutions by the States, should be accorded retroactive application. That decision, hereinafter discussed in detail, reversed a state court judgment of conviction based on an offense which had been the basis of an earlier municipal court conviction. The District Court for the Eastern District of Tennessee granted appellee Robinson's petition for a writ of habeas corpus and held that Waller should be applied retroactively. Robinson v. Neil, 320 F.Supp. 894 (E.D.Tenn.1971)

The facts pertaining to the instant action are not complicated. In 1962, appellee was tried and convicted in the municipal court of three assault and battery offenses in violation of a Chattanooga, Tennessee ordinance, and was fined $50.00 and costs for each offense. Subsequently, he was named in three indictments charging assault with intent to commit first degree murder, arising out of the same facts resulting in the municipal convictions. Following arraignment in the state court of general jurisdiction, he pled guilty to each charge and received two consecutive sentences of two to ten years and one consecutive sentence of three to five years. He is presently confined in the Tennessee State Penitentiary, pursuant to the state court convictions.

In July, 1966, appellee filed a petition for writ of habeas corpus in the Criminal Court of Davidson County, Tennessee, contending that the state court convictions violated the double jeopardy guarantee in that they stemmed from the same facts and circumstances as his municipal court convictions. The petition was denied by the Criminal Court of Davidson County and the denial was affirmed by the Tennessee Supreme Court. In March, 1967, he filed a petition for habeas corpus relief in the District Court, advancing the double jeopardy argument. That court denied the petition on the ground that under Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), the Fifth Amendment double jeopardy provision was not applicable to the States through the Fourteenth Amendment. Robinson v. Henderson, 268 F.Supp. 349 (E.D.Tenn.1967), aff'd, 391 F.2d 933 (6th Cir. 1968). This court affirmed that determination by order dated April 10, 1968.

Soon thereafter, Palko v. Connecticut, supra, was overruled by the Supreme Court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which held that the Fifth Amendment double jeopardy provision is applicable to the States through the Fourteenth Amendment. With Benton as precedent, the Supreme Court granted certiorari in Waller v. Florida, supra, to test "the asserted power of both a municipal court and a state court within one State to place a person on trial for the same alleged crime." 397 U.S. at 390, 90 S.Ct. at 1186. As previously indicated, Waller held such multiple prosecutions to be violative of the Fifth Amendment, which leads us to the present case. In appellee's petition to the District Court, he stated that he had been tried and convicted by both the City of Chattanooga and the State of Tennessee for the same offense, and on authority of Waller, requested that his state conviction be overturned. Waller, however, left open the question of whether the rule announced therein is to be given retroactive effect, leaving us free to decide that issue on its merits.

The Benton decision making the double jeopardy provision applicable to the States has been given full retroactivity. The Supreme Court stated in a footnote in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), decided the same day as Waller, that: "There can be no doubt of the `retroactivity' of the Court's decision in Benton v. Maryland. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, decided the same day as Benton, the Court unanimously accorded fully `retroactive' effect to the Benton doctrine." 397 U.S. at 437, 90 S.Ct. at 1191, n. 1.¹ Furthermore, this court reached the identical conclusion in Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970). See also, Booker v. Phillips, 418 F.2d 424 (10th Cir. 1969); and Galloway v. Beto, 421 F.2d 284 (5th Cir. 1970).

In finding retroactivity of the Waller rule in the instant case, the District Court placed great weight on the rationale of Benton and the rationale which was persuasive in making Benton retroactive.² The District Judge quoted a passage from Mr. Justice Marshall's opinion in Benton, which is illustrative of the long and cherished heritage enjoyed by the double jeopardy guarantee in our system of justice. Robinson v. Neil, supra, 320 F.Supp. at 897. The Court then made two observations: (1) "The retroactivity of the Benton decision has been decided and that case has been held to be `fully retroactive.'" and (2) "Waller v. Florida overrules no previous federal judicial precedent." From this, the Court concluded: "When the foregoing two observations are jointly considered, they appear to be tantamount to a prior adjudication upon the issue of retroactivity and to require that Waller v. Florida be given fully retroactive effect." Robinson v. Neil, supra, 320 F.Supp. at 898. While we agree that the purpose of the Waller rule is decisive of the issue of retroactivity in the present case, in our opinion the District Court herein was unduly swayed by the history and purpose of the double jeopardy guarantee applied to test Waller, rather than by the history and purpose of the Waller rule itself.

In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court established that the test of retroactivity is concerned with the purpose of the specific rule under consideration, rather than with the particular constitutional right involved:

"We here stress that the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved.

* * * * * *

"We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based * * * We must determine retroactivity `in each case\' by looking to the particular traits of the specific `rule in question.\'" 384 U.S. at 728, 86 S.Ct. at 1778. (Emphasis supplied.)

With this in mind we return to Waller. Petitioner, Joseph Waller, Jr., was arrested and charged in St. Petersburg, Florida, with violation of two city ordinances for taking a mural from the St. Petersburg City Hall and carrying it through the streets in a damaged condition. He was found guilty on both charges in the St. Petersburg Municipal Court and was sentenced to 180 days imprisonment. He was then tried and convicted on a charge of grand larceny for the same acts by the State of Florida and received a sentence of six months to five years, less 170 days of the 180 day municipal sentence.

Waller appealed to the District Court of Appeal of Florida, 213 So.2d 623 and that court upheld each of the convictions on the ground that under Florida precedent, trial and conviction for the same offense in both a municipal court and a state court does not constitute double jeopardy. Following denial of certiorari by the Florida Supreme Court, 221 So.2d 749, the United States Supreme Court granted certiorari and reversed his state court convictions.

In the Supreme Court, the State of Florida contended that municipalities and the State are separate sovereigns, permitting each to punish persons for the same crime. Florida argued that since the Supreme Court ruled in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), that successive prosecutions by a state court and a federal court for the same crime are constitutionally permissible as punishment by separate sovereigns, the same result should follow for the municipality and the State. The Supreme Court rejected Florida's argument, indicating that such reliance upon Bartkus and Abbate and their predecessor, Fox v. Ohio, 5 How. 410, 12 L.Ed. 213 (1847), was erroneous. The Court cited Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), for the proposition that municipalities have never been considered separate sovereignties from the State, but rather are political subdivisions thereof. The Court stated:

"The proper analogy is to be found in the relationship between the government of a Territory and the Government of the United States. The legal consequence of that relationship was settled in Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907) where it was held that a prosecution in a court of the United States is a bar to a subsequent prosecution in a territorial court, since both are arms of the same sovereign." 397 U.S. at 393, 90 S.Ct. at 1188.

Thereinafter, the Waller Court concluded:

"Thus Grafton, not Fox v. Ohio, supra, or its progeny, Bartkus v. Illinois, supra, or Abbate v. United States, supra, controls, and we hold that on the basis of the facts upon which the Florida District Court of Appeal relied petitioner could not lawfully be tried both by the municipal government and by the State of Florida. In this context a `dual

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