Delk v. Atkinson

• Citation: 498 F. Supp. 1282
• Decision Date: 06 October 1980
• Docket Number: No. 80-1011.,80-1011.
• Court: U.S. District Court — Middle District of Tennessee
• Parties: Samuel DELK, Petitioner, v. Frank D. ATKINSON, Sheriff, Hickman County; Jim Rice, Circuit Court Clerk, Hickman County, Respondents.

498 F. Supp. 1282

Samuel DELK, Petitioner, v. Frank D. ATKINSON, Sheriff, Hickman County; Jim Rice, Circuit Court Clerk, Hickman County, Respondents.

No. 80-1011.

United States District Court, M. D. Tennessee, Columbia Division.

October 6, 1980.

Lionel R. Barrett, Jr., William P. Redick, Jr., Nashville, Tenn., for petitioner.

Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondents.

MEMORANDUM

WISEMAN, District Judge.

In this petition for the writ of habeas corpus, petitioner, Samuel Delk, has requested the Court to examine the record of his 1976 state murder trial under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine whether there was, as a matter of constitutional law, sufficient evidence to warrant the jury's verdict finding him guilty of second degree murder. Jackson requires a federal habeas court to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found a habeas petitioner guilty beyond a reasonable doubt. 443 U.S. at 319, 99 S.Ct. at 2789. The Tennessee Supreme Court reversed petitioner's conviction on the basis of certain trial errors,¹ Delk v. State, 590 S.W.2d 435 (Tenn.1979), but specifically found that there was sufficient evidence supporting the jury's verdict and thus remanded the case for retrial. Id. at 441-42. Delk is currently out on bail pending retrial, having spent three and one-half years in state custody after his conviction. He filed this habeas petition on April 15, 1980, and on June 26, 1980, this Court stayed further prosecution of petitioner in state court pending disposition of the petition.

Petitioner maintains that the evidence presented at his first trial does not satisfy the Jackson standard, and he further maintains that, because the evidence was constitutionally insufficient, a retrial is barred under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which held that the double jeopardy clause bars retrial if a conviction is reversed on review because of insufficient evidence. In essence, petitioner argues that the rationale of Burks also bars retrial if a federal district court in a habeas corpus action finds that the evidence against the defendant fails to satisfy the Jackson test.

It is with the greatest reluctance that this Court or any federal court intrudes upon a state criminal proceeding in which the accused was found guilty by a jury properly instructed as to the requirement of proof beyond a reasonable doubt, a finding approved in turn by the intermediate appellate court, and finally by the state's court of last resort. However, the very purpose of federal habeas corpus is the protection and vindication of federal constitutional rights, and when these rights are imperiled, considerations of comity must give way. See Jackson v. Virginia, supra, 443 U.S. at 322, 99 S.Ct. at 2791; Webb v. Court of Common Pleas, 516 F.2d 1034, 1036 (3d Cir. 1975). Such is the situation presented by the instant case. Having scrutinized the record, the Court must conclude that if the constitutional requirement of proof beyond a reasonable doubt and the prohibition against double jeopardy are to have any meaning in our judicial system, the State of Tennessee cannot subject this petitioner to retrial. Accordingly, the writ of habeas corpus shall issue, and petitioner is to be released from bail. The Court further finds that as a matter of law, this judgment precludes a retrial of petitioner for the 1975 slaying of Harold Gipson in Centerville, Tennessee. The Court deems it unnecessary to order specific injunctive relief barring state retrial at this time, because the Court assumes that the State will act in good faith in light of the Court's decision and dismiss the charges against petitioner.

Jurisdiction.

Before examining the merits of petitioner's claim, the Court must ensure that this case lies within its habeas corpus jurisdiction. The Court must determine that the petitioner has stated a cognizable claim, that he is "in custody" for the purposes of the statutory requirement, that he has exhausted his available state remedies, and that this Court's judgment does not exceed its limited authority to interfere with state criminal proceedings. Although the Court has stated these requirements discretely, it should be obvious that they are related to a significant degree.

A. The Cognizability of the Claim.

Petitioner claims that his retrial would violate the Fifth Amendment ban against double jeopardy, which was applied to the states through the due process clause of the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Claims based on the double jeopardy prohibition are cognizable in a federal habeas corpus action prior to a state retrial. Gully v. Kunzman, 592 F.2d 283, 286-87 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979). The essence of petitioner's claim is that his retrial would violate the double jeopardy ban because there was insufficient evidence presented at his first trial, and thus the state should not be allowed "a second bite at the apple." The legal theory behind this claim derives from a mixture of three recent Supreme Court decisions: Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Burks arose from a federal criminal trial that resulted in conviction of the defendant. The Sixth Circuit reversed the conviction after finding that there was insufficient evidence, and remanded the case to district court for retrial. After granting certiorari, the Supreme Court reversed the Sixth Circuit, holding that "the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient." 437 U.S. at 18, 98 S.Ct. at 2150. The only remedy at that point is the direction of a judgment of acquittal. Greene v. Massey, supra, a companion case to Burks, applied this principle to state criminal proceedings.

Jackson v. Virginia, supra, arose from a federal habeas corpus proceeding in which the petitioner claimed that his Virginia murder conviction was based on insufficient evidence. The district court applied the "no evidence" standard of review first announced in Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), and granted the writ. The Fourth Circuit reversed, and on certiorari the Supreme Court affirmed the court of appeals. However, in order to implement more fully the due process standard of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that protects a defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged, id. at 364, 90 S.Ct. at 1072, the Jackson Court articulated a new standard of review for district courts to apply in habeas proceedings challenging the sufficiency of the evidence in a state criminal trial. The Court held that the federal court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2792.

Petitioner combines Jackson, Burks, and Greene and concludes that they require this Court to apply a Jackson review to his now — reversed state conviction prior to retrial, because if the evidence at the original trial failed to satisfy the Jackson test, a retrial would unconstitutionally expose him to double jeopardy. So far as the Court has been able to determine, this is a case of first impression. However, the logic of petitioner's proposition is inescapable, and the Court must accept it. Although neither Burks nor Greene specifically states that a subsequent state retrial would violate the double jeopardy clause if a federal habeas court, instead of an appellate court, finds that a state conviction was based on insufficient evidence, there is no reasonable basis for concluding otherwise. It is, after all, the nature of the right, and not the nature of the reviewing court, that bars a retrial if the reviewing court finds that the original conviction was based on constitutionally deficient evidence.² The only court that has considered the question in a reported decision concluded that state retrial is barred if the district court finds that a state conviction fails to satisfy the Jackson standard, Holloway v. McElroy, 474 F.Supp. 1363, 1365 (M.D.Ga.1979), and this Court concludes likewise.

There is, however, a question of whether a Jackson review may be applied by way of a habeas corpus action in the situation presented by the instant case. Petitioner's conviction was reversed by the Tennessee Supreme Court, but it found that there was sufficient evidence to support the conviction. Petitioner now wants this Court to intervene prior to his retrial and, in effect, determine whether the state court erred in remanding his case for a retrial. Although this Court frowns upon the prospect of its intervention in this fashion, the Court's duty is clear. Petitioner's constitutional rights are imperiled, because a retrial would subject him to double jeopardy if the evidence at his first trial was constitutionally insufficient. Holloway v. McElroy, supra. Federal habeas courts have the duty to intervene prior to trial when the prohibition against double jeopardy is at stake. Gully v. Kunzman, supra.³ Moreover, there is no dispute that this Court must apply the Jackson standard in determining whether the evidence was constitutionally sufficient.⁴

Consequently, this Court finds that it has the jurisdiction to make a Jackson review at this juncture for the...