Thomas v. Morris

• Decision Date: 09 June 1988
• Docket Number: No. 85-1934,85-1934
• Parties: Larry P. THOMAS, Appellant, v. Terry MORRIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1337

844 F.2d 1337

Larry P. THOMAS, Appellant, v. Terry MORRIS, Appellee.

No. 85-1934.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1987.

Decided April 21, 1988.

Rehearing and Rehearing En Banc Denied June 9, 1988.

Springfield, Baldwin, St. Louis, Mo., for appellant.

Patricia D. Perkins, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

Larry P. Thomas appeals from a final judgment entered in the District Court for the Eastern District of Missouri dismissing his petition for writ of habeas corpus. On appeal a panel of this Court reversed and remanded the case to the district court for resentencing or a retrial within ninety days of the issuance of the decree. Thomas v. Morris, 816 F.2d 364, 371 (8th Cir.1987). ¹ Both the State and Thomas petitioned this Court for a rehearing en banc and we granted the petitions. After further briefing and oral argument to the Court en banc, we now reverse the district court's judgment and remand to the district court The relevant facts of the underlying offenses are not currently in dispute. On November 8, 1972, Thomas, during the course of a robbery of an auto parts store, engaged in a "shootout" with a customer, who subsequently died from the injuries received. Thomas was convicted of first degree felony murder and attempted robbery in the first degree by means of a dangerous and deadly weapon in a jury trial in St. Louis Circuit Court (the state trial court). On May 15, 1973, Thomas was sentenced to life imprisonment for the felony murder and fifteen (15) years imprisonment for the attempted robbery. The sentences were to be served consecutively and the 15-year sentence was to be served first. The Missouri Court of Appeals affirmed the conviction. Thomas v. State, 665 S.W.2d 621 (Mo.Ct.App.1983).

with instructions to issue the writ in accordance with this opinion.

Thomas filed a Missouri Rule 27.26 motion for post conviction relief in 1977; this motion was denied. On appeal, the Missouri Court of Appeals vacated the state trial court's dismissal of the Rule 27.26 motion and remanded the case for a new hearing on the grounds that the transcript on appeal did not include all the evidence adduced at the hearing. After an evidentiary hearing, the state trial court granted Thomas's motion in part and vacated the conviction for attempted robbery. The state trial court held that Thomas's convictions for attempted robbery and felony murder and separate consecutive sentences for the offenses, violated the double jeopardy clause, because the Missouri legislature did not intend to allow separate and consecutive punishments for felony murder and the underlying felony. The state trial court left intact Thomas's felony murder conviction and life sentence.

In June 1981 Thomas's 15-year sentence for attempted robbery was commuted by the governor. Thomas had begun serving this sentence on June 28, 1973, and thus had served approximately eight years of the 15-year sentence. On June 24, 1982, one year after the commutation by the governor, the state trial court vacated the 15-year sentence and credited the time Thomas had served prior to the court's vacation of the 15-year sentence, to his life sentence for felony murder. The Missouri Court of Appeals affirmed the state trial court's decision. Thomas v. State, 665 S.W.2d 621, 625 (Mo.Ct.App.1983).

DISTRICT COURT PROCEEDINGS

On August 1, 1984, Thomas filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254. He contended that his confinement as a result of the life sentence violated the double jeopardy clause. The matter was referred to a magistrate, who recommended that the writ be issued because Thomas had completed the 15-year sentence for the attempted robbery. Thomas v. Morris, No. 84-1760 C (5), slip op. at 11 (E.D.Mo. March 29, 1985). The magistrate concluded that the state trial court did not have jurisdiction to vacate the 15-year sentence and to cause Thomas to serve the life prison sentence for the same conviction.

On June 28, 1985, the district court rejected the magistrate's recommendation. Relying on Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983), the district court held that with respect to cumulative sentences imposed in a single trial, the "double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Thomas v. Morris, No. 84-1760 C (5), slip op. at 3 (E.D.Mo. June 28, 1985). The court held that Thomas was not being subjected to greater punishment than the legislature intended because "the entire time he served for the attempted robbery sentence was duly credited to his life sentence on the felony murder conviction." Id.

PANEL DECISION

The majority of the panel in three separate opinions reversed the judgment of the district court and remanded the case for resentencing or retrial within ninety days of the issuance of the opinion. Thomas v. Morris, 816 F.2d at 371. Two members of

                the panel, Judges McMillian and Hanson, 2 agreed that Thomas had legally satisfied the sentence he received for the attempted robbery and that the subsequent vacation of that sentence and his continued confinement under the felony murder conviction violated the double jeopardy clause, but could not agree on the remedy necessary to correct the double jeopardy violation.   Id. at 367 (majority opinion).  Additionally, Judge Bowman did not believe that a double jeopardy violation had occurred.   Id. at 372 (Bowman, J., dissenting in part).  Nonetheless, he joined with Judge Hanson in holding that any double jeopardy violation which had occurred could be corrected by either resentencing or retrial.   Id. at 371.  They relied on the Supreme Court's decision in Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), which held that reducing a defendant's concededly jeopardy-barred conviction for aggravated murder to a conviction for murder that was not jeopardy-barred was an adequate remedy for the double jeopardy violation.   Morris v. Mathews, 475 U.S. at 244-48, 106 S.Ct. at 1037-39.  Judges Hanson and Bowman concluded that the state court judge in the present case could correct the double jeopardy problem by changing the jeopardy-barred felony murder conviction to a non-jeopardy-barred lesser included offense of murder.  The state trial court then could sentence Thomas on the offense of murder unless Thomas was able to "demonstrate a reasonable probability that he would not have been convicted of the non-jeopardy-barred offense absent the presence of the jeopardy-barred offense."   Thomas v. Morris, 816 F.2d at 371 (citing Morris v. Mathews, 475 U.S. at 247, 106 S.Ct. at 1038).  If Thomas could show prejudice resulting from the inclusion of the felony murder charge he would be entitled to a new trial on the non-jeopardy-barred murder offense.   Thomas v. Morris, 816 F.2d at 371.  Judge McMillian, in a separate concurring and dissenting opinion, held that the double jeopardy violation could not be cured either by resentencing or retrying Thomas on the lesser included offense of murder and thus Thomas should be granted habeas corpus relief.  Id. (McMillian, J., concurring in part and dissenting in part)
                

REHEARING EN BANC

Both Thomas and the State filed petitions for rehearing en banc and supplemental briefs. The State argues that the panel decision is contrary to the holdings of several Eighth Circuit and Supreme Court decisions which permitted courts to impose a single sentence where illegal multiple sentences had been imposed. Thomas also asserts that the court's sentence is in opposition to prior decisions of the Supreme Court, In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), and decisions of this Court, Holbrook v. United States, 136 F.2d 649 (8th Cir.1943). Thomas contends that the cases relied on by the State are distinguishable from the present case because in those cases the defendant had not completely satisfied one of the illegally imposed multiple sentences.

We begin our analysis, as the panel did, by considering whether Thomas had fully satisfied the 15-year sentence for the attempted robbery conviction prior to the vacation of that sentence by the state trial court. The State argues now, as it did before, that Thomas had not completed his 15-year sentence for attempted robbery at the time the sentence was vacated. The State concedes that Thomas had completed the commuted sentence, but argues that the commutation of the 15-year sentence merely changed Thomas's punishment from 15 years plus life to a less severe punishment of a life sentence only.

We cannot agree with the State's reading of the commutation. The commutation refers only to the 15-year sentence and expressly commutes this sentence. The commutation neither refers to a substitution of one sentence for another nor is there any mention in the commutation document of either the felony murder conviction or the life sentence. The State has offered no evidence which calls into question the plain language of the commutation or otherwise supports the State's theory that the life sentence was substituted for the 15-year sentence. We thus hold that the governor commuted Thomas's 15-year sentence, that Thomas served the commuted sentence for the attempted robbery, and thereby, under Missouri law, Thomas has satisfied the sentence for this offense. See State v. Cerny, 248 S.W.2d 844, 845 (Mo.1952). We next consider whether the state court's subsequent vacation of the 15-year sentence for attempted robbery and Thomas's continuing confinement under the life sentence on the felony murder conviction violated the double jeopardy clause. This issue has not been...