Sistrunk v. Lyons

• Decision Date: 31 March 1981
• Docket Number: No. 80-1649,80-1649
• Citation: 646 F.2d 64
• Parties: SISTRUNK, Edward, Appellant, v. Edmund LYONS and the Attorney General of the State of Pennsylvania and District Attorney of Phila. County.
• Court: U.S. Court of Appeals — Third Circuit

Page 64

646 F.2d 64

SISTRUNK, Edward, Appellant, v. Edmund LYONS and the Attorney General of the State of

Pennsylvania and District Attorney of Phila. County.

No. 80-1649.

United States Court of Appeals, Third Circuit.

Argued Nov. 7, 1980.

Decided March 31, 1981.

William James (argued), Louis Lipschitz, Philadelphia, Pa., for appellant.

Michael F. Henry, Chief, Motion Unit, Steven H. Goldblatt (argued), Deputy Dist. Atty., Edward G. Rendell, Dist. Atty., Philadelphia, Pa., for appellees.

Before ADAMS and SLOVITER, Circuit Judges, and BROTMAN ^* District judge.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal, by a state prisoner charged with first degree murder, presents two primary issues. First, does a federal court have jurisdiction over a petition for habeas corpus based on a challenge to excessive bail or the refusal to set bail? Second, how should a federal court deal with a prisoner's habeas corpus petition when it is not clear whether the highest state court imposed excessive bail or refused bail completely? ¹

I.

Nine years ago, on October 22, 1971, Edward Sistrunk was convicted in the Court of Common Pleas of Philadelphia of first degree murder and eleven related offenses. The charges stemmed from a robbery by eight persons of Dubrow's Furniture Store. In the course of the robbery, one man was killed, five fires were ignited, and many persons were assaulted. Sistrunk received sentences of life imprisonment for murder, followed by consecutive and concurrent twenty to forty year sentences for the other crimes. On appeal, the Pennsylvania Supreme Court affirmed the judgment. Commonwealth v. Sistrunk, 460 Pa. 655, 334 A.2d 280 (1975).

Sistrunk then sought collateral relief pursuant to the Pennsylvania Post-Conviction Hearing Act. ² On May 25, 1979 the Philadelphia Court of Common Pleas granted Sistrunk a new trial on the ground that his Sixth Amendment rights were abridged by prejudicial error in the prosecutor's closing argument and by ineffective assistance rendered by his counsel.

Following the award of a new trial, Sistrunk requested that bail be set pending his retrial. At the bail hearing, presided over by the same judge who had overturned the original convictions, Sistrunk stated that while awaiting retrial he intended to live with his mother in Philadelphia, that he had nine children who resided with his divorced wife in Philadelphia, and that the head of the Muslim Temple in Philadelphia had offered him a job. The court concluded that it

has had an opportunity to weight (sic) the gravity of the crime, the mitigating and aggravating circumstances which are inherent in the transcript which this Court has read and which is a very important factor upon the likelihood of conviction and possible penalty. The Court has taken into consideration that which has been adduced by the defendant with respect to his marital status, his background as to criminal conduct over a period of time which apparently was abated by his present incarceration, because there were a series of convictions during a sustained period of time.

Bail was then set at two million dollars. ³

Sistrunk next appealed the bail adjudication to the Pennsylvania Supreme Court, which denied the application for a bail reduction in a cryptic per curiam order that declared:

It is the conclusion of the Supreme Court that this is a case where bail should be denied. In view thereof this petition is denied.

Appellant then filed for habeas corpus relief in the district court. ⁴ He alleged that the $2 million bail (1) contravened his Eighth and Fourteenth Amendment rights to reasonable bail, (2) abridged the presumption of innocence accorded all unconvicted persons, and (3) violated a policy of equal treatment, insofar as a co-defendant convicted of the same charges and also awarded a new trial had been released on $300,000 bail. The district court, adopting the report and recommendation of a United States Magistrate, denied relief without a hearing on the merits. It concluded that the state trial judge had not abused his discretion in setting bail nor set an arbitrary or discriminatory bail in violation of the Fourteenth Amendment. Further, the district court reasoned that, because Sistrunk could be subject to the death penalty on retrial, bail could have been denied in any event. This appeal ensued.

Because we conclude that the excessive bail provision of the Eighth Amendment is applicable to the states pursuant to the due process clause of the Fourteenth Amendment, but find it plausible that the State Supreme Court intended not to impose a $2 million bail but to deny bail altogether, we affirm the order of the district court without prejudice to petitioner to seek clarification from the state courts.

II.

Our first concern is to determine whether this Court has jurisdiction to entertain the present proceeding. Federal courts have authority to consider habeas petitions of persons in state custody pursuant to 28 U.S.C. § 2254, "only on the ground that the applicant is in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a). Accordingly, it is necessary to decide, as a threshold matter, whether the right to be free of excessive bail that is enshrined in the Eighth Amendment extends to an individual in state criminal proceedings. Unless the due process clause of the Fourteenth Amendment encompasses this Eighth Amendment provision, making it applicable to the states, Sistrunk has not presented a claim cognizable under § 2254.

During the years following World War II, the Supreme Court has attempted to sculpt the procedural content of the Fourteenth Amendment's due process clause. It has done so in theory by asking whether a particular right is fundamental to ordered liberty; ⁵ and it has done so in practice by incorporating specific guarantees of the Bill of Rights in the Fourteenth Amendment. ⁶ This judicial process of selective incorporation ⁷ of the values embodied in the clauses of the Bill of Rights through the Fourteenth Amendment has never directly resolved whether the Eighth Amendment prohibition of excessive bail is binding on state proceedings. The relatively short opinion of the Supreme Court in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), which held that the state and federal governments were equally bound by the Eighth Amendment's companion clause against cruel and unusual punishment, found no occasion to address or to distinguish the Amendment's other provisions. But insofar as enforcement of the Eighth Amendment's cruel and unusual punishment clause against a state is bottomed on the presence of that prohibition in the English Bill of Rights of 1689, ⁸ the excessive bail prohibition should be similarly enforced, for it too is enumerated in the ancient Bill of Rights. ⁹ Moreover, the Supreme Court has to a considerable extent foreshadowed its position on this important subject by stating in Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), that "(b)ail, of course is basic to our system of law, (citing cases), and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the states through the Fourteenth Amendment." Id. at 365, 92 S.Ct. at 484. The Supreme Court has recently noted that it continues to adhere to this assumption as a fundamental means for protecting against deprivations of liberty without due process of law. See Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2694 n.3, 61 L.Ed.2d 433, id. 149 n.1, 99 S.Ct. at 2697 n.1 (Stevens, J. dissenting) (1979).

Moreover, insofar as interrelated rights, similarly aimed at preventing unwarranted confinement of those not guilty, have been deemed constitutionally required at the state level it follows logically that freedom from excessive bail should be an essential element of due process. Thus, the Sixth Amendment right to a speedy trial, an alternative method for minimizing pretrial detention, has been declared to be a constitutional protection that both state and federal governments must observe. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Court has also held that proof of a criminal charge beyond a reasonable doubt analogously a safeguard against unjust imprisonment of persons not guilty is a constitutionally mandated element of due process as that clause has been applied to the states. ¹⁰ In parallel fashion, freedom from excessive bail forecloses unjustified detention of those not yet adjudicated guilty. ¹¹

There is a set of inquiries that the Supreme Court has developed for determining whether a right provided by the Bill of Rights with respect to federal criminal proceedings is also protected by the Fourteenth Amendment from state encroachment. As articulated in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the question is "whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, whether it is basic in our system of jurisprudence; and whether it is a fundamental right, essential to a fair trial." Id. at 148-49, 88 S.Ct. at 1446-48. What a court faced with an incorporation question must ultimately decide is whether our society's historic and philosophic commitment to the particular clause in issue is sufficient to require that states, as well as the federal government, bear the responsibility for respecting that provision.

The right to be free from excessive bail meets the first test set forth in Duncan. It belongs to those "fundamental principles of liberty and justice which lie at the base of our civil and political institutions." ¹² Bail was a carefully guarded right in colonial America, and early legislation significantly expanded upon English bail law by replacing remnants of magistral discretion with a positive right to bail, except in capital cases. ¹³ The Eighth...