Hoffer v. Morrow, 86-1111

• Decision Date: 15 July 1986
• Docket Number: No. 86-1111,86-1111
• Parties: Donald HOFFER, Petitioner-Appellant, v. Robert MORROW, State's Attorney of Kane County, and Marvin Dunn, Circuit Court Judge, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 348

797 F.2d 348

Donald HOFFER, Petitioner-Appellant, v. Robert MORROW, State's Attorney of Kane County, and Marvin

Dunn, Circuit Court Judge, Respondents-Appellees.

No. 86-1111.

United States Court of Appeals, Seventh Circuit.

Argued June 17, 1986.

Decided July 15, 1986.

Ralph Ruebner, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, Atty. Gen. of Ill., Chicago, Ill., for respondents-appellees.

Before WOOD, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This appeal from the denial of a writ of habeas corpus, 626 F.Supp. 786 (N.D.Ill. 1985), presents a double-jeopardy question of some novelty but little difficulty. In 1982 Donald Hoffer shot and killed Harold Peters. A jury in an Illinois court convicted him of murder, voluntary manslaughter, and involuntary manslaughter; and the judge sentenced him to 20 years in prison, for murder. The Illinois Supreme Court affirmed the reversal by the Illinois Appellate Court of all three convictions on the ground that they were inconsistent with each other, and remanded for a new trial on all three counts. People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20, 478 N.E.2d 335 (1985), aff'g 122 Ill.App.3d 13, 77 Ill.Dec. 520, 460 N.E.2d 824 (1984). Hoffer then filed this habeas corpus action, claiming that for purposes of double jeopardy the convictions must be treated as an acquittal of all but the involuntary manslaughter charge. He lost, and filed this appeal. While the appeal was pending he pleaded guilty to voluntary manslaughter and was sentenced to nine years in prison. We must consider whether his guilty plea makes this appeal moot.

You can waive the defense of double jeopardy like other constitutional defenses but in the federal system and at least some state systems a plea of guilty is not considered a waiver of this particular defense. Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975) (per curiam); United States v. Baugh, 787 F.2d 1131 (7th Cir.1986); United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986). Although asked to brief the issue of mootness the parties have not enlightened us on whether under Illinois law a guilty plea waives double jeopardy. We need not pursue that question, however, since the best interpretation of Hoffer's plea is that it was conditional on his appeal's failing. If Hoffer lost this appeal he faced a retrial on the murder count and a possible sentence of 20 years. He was therefore under pressure to plead guilty to a lesser count. As the state was not content with involuntary manslaughter, the only way Hoffer could be sure of escaping another 20-year sentence was to plead guilty to voluntary manslaughter. Although he could have dropped this appeal as a concomitant of pleading guilty to voluntary manslaughter, he did not, which is a further indication that his purpose in pleading guilty was to put a cap on his potential liability rather than to abandon his double jeopardy argument.

A waiver is a deliberate relinquishment of a legal right, see, e.g., Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and there was no waiver in this sense of Hoffer's argument that the jury verdict precluded any conviction other than for involuntary manslaughter. It is true that the word is often used as a synonym for forfeiture, as when a state criminal defendant who fails to raise his federal defenses in the state court system is held to have waived the right to make them in a federal habeas corpus proceeding. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 88-90, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977); Nutall v. Greer, 764 F.2d 462, 464 (7th Cir.1985). But there was no waiver in this sense either; double jeopardy was one of the grounds of Hoffer's appeal from his original conviction.

Therefore this appeal is not moot. If Hoffer prevails in the appeal his guilty plea (which we interpret as conditional on the appeal's failing) will lapse, and he will have to be released from custody under it, cf. Reimnitz v. State's Attorney of Cook County, 761 F.2d 405, 408 (7th Cir.1985), although the state will still be free to retry him for involuntary manslaughter. It is true that here as in Reimnitz there is a question whether the petitioner has named the proper respondent if what he wants is to be released from custody under his plea, because neither of the respondents is his custodian; however, here as there the problem could be solved by amendment if necessary, see id. at 409, but it will not be necessary.

The state argues that Hoffer should be barred on equitable grounds from pursuing the appeal. The argument is that by admitting guilt of voluntary manslaughter Hoffer has taken a position that "is inconsistent with his prayer that he be held only to the offense of involuntary manslaughter. His conduct has made his habeas cause unworthy." We find this argument incomprehensible. There is to begin with no inconsistency. Hoffer's argument on this appeal is not that he is innocent of voluntary manslaughter but that he was acquitted of voluntary manslaughter. These are two different things; guilty people are sometimes acquitted, yet they have the same protection against being retried as innocent people. Anyway there is no doctrine that says you cannot take a position in a habeas corpus proceeding that is inconsistent with your position at trial.

So we come to the merits of Hoffer's double jeopardy claim. To evaluate it will require us to set forth the facts of the case and also the elements of the three forms of homicide that he was convicted of at trial. Hoffer's sister had been intimate with Peters but they had broken up and she had moved in with Hoffer. On the day of the killing Peters had entered Hoffer's house while he was out and caused a commotion. When his sister reported this on his return home Hoffer said he was sick of Peters' breaking things and "he'd be ready for him when he came back after the bars closed." Shortly afterward Peters arrived and Hoffer, armed with a loaded shotgun, confronted Peters on the porch. Peters was wearing only a T-shirt and jeans and it was evident that he was not armed. According to the sister, after an exchange of words Peters turned around and began walking down the porch steps, away from Hoffer and with his back turned and his arms in the air. The sister yelled to Hoffer, "Don, don't do it; don't do it; don't shoot," but Hoffer shot, hitting Peters in the back and killing him. Hoffer testified that the gun was pointing straight up and resting on his shoulder until he thought he saw Peters--who was skilled with guns...