Allen v. Attorney General of State of Me.

• Decision Date: 05 February 1996
• Docket Number: No. 95-2057,95-2057
• Citation: 80 F.3d 569
• Parties: Ryan ALLEN, Petitioner, Appellant, v. ATTORNEY GENERAL OF the STATE OF MAINE, Respondent, Appellee. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 569

80 F.3d 569

Ryan ALLEN, Petitioner, Appellant, v. ATTORNEY GENERAL OF the STATE OF MAINE, Respondent, Appellee.

No. 95-2057 United States Court of Appeals,

First Circuit.

Heard Feb. 5, 1996.

Decided March 26, 1996.

Appeal from the United States District Court for the District of Maine; Hon. Morton A. Brody, Judge.

Wayne R. Foote, with whom Foote & Temple was on brief, Bangor, ME, for appellant.

Joseph A. Wannemacher, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, Augusta, ME, was on brief, for appellee.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Invoking federal habeas corpus jurisdiction, petitioner-appellant Ryan Allen seeks to block the State of Maine from prosecuting him for operating a motor vehicle under the influence of alcohol (OUI) in violation of 29 M.R.S.A. § 1312-B (West Supp.1994). ¹ He insists that continued prosecution of this charge will transgress the Double Jeopardy Clause. See U.S. Const. amend. V. Because the petitioner's arguments, though ingenious, are without intrinsic merit, we affirm the district court's dismissal of his habeas petition.

I

On December 11, 1994, a state trooper arrested Allen for committing an OUI offense. The State preferred charges against him. As directed by law, the Secretary of State (the Secretary) then suspended Allen's driver's license for ninety days. See 29 M.R.S.A. § 1311-A, reprinted in the appendix.

It is said that every action produces an equal and opposite reaction. Having felt the lash of the administrative suspension, the petitioner moved to dismiss the pending criminal charge on double jeopardy grounds. The nisi prius court denied the motion, relying upon an opinion issued by Maine's highest tribunal (the Law Court) two months earlier. See State v. Savard, 659 A.2d 1265, 1268 (Me.1995) (holding in materially identical circumstances that an administrative license suspension did not constitute punishment for double jeopardy purposes). Instead of appealing the ruling to the Law Court, the petitioner (who had been released on bail and was, therefore, technically in the state's custody, see Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir.1987)), applied for a writ of habeas corpus in the United States District Court for the District of Maine.

The federal district court consolidated this petition with a petition brought by Lori Thompson (a similarly situated individual). After due consideration, Judge Brody concluded that the license suspension and indictment arose from the same offense and constituted separate proceedings, ² but that there could be no multiple punishment (and, hence, no double jeopardy) because the administrative sanction served remedial, rather than punitive, ends. See Thompson v. Maine Atty. Gen., 896 F.Supp. 220, 221-22 (D.Me.1995) (explaining that the suspension provision "is designed primarily to ensure the public safety of drivers in Maine"). Accordingly, Judge Brody dismissed both habeas petitions. See id. at 223. This appeal ensued.

II

Before turning to the merits of the double jeopardy claim, we discuss two potential procedural obstacles.

A.

The first procedural hurdle is easily vaulted. Ordinarily, a state criminal case is ripe for the ministrations of a federal habeas court only after completion of the state proceedings (that is, after the defendant has been tried, convicted, sentenced, and has pursued available direct appeals). See, e.g., Fay v. Noia, 372 U.S. 391, 418, 83 S.Ct. 822, 837-38, 9 L.Ed.2d 837 (1963); Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.1989). In this instance, the petitioner knocked on the federal court's door before his state trial began. But because of an exception to the ripeness rule, this case evades the bar.

A petition for habeas relief that raises a colorable claim of former jeopardy need not invariably await trial and conviction in the state court. Such claims are distinctive because the Constitution insists that "courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Witte v. United States, --- U.S. ----, ----, 115 S.Ct. 2199, 2205, 132 L.Ed.2d 351 (1995) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)). To realize the solemn promise of this constitutional guaranty, federal habeas courts will in appropriate circumstances entertain a claim that permitting a nascent (but as yet incomplete) state court prosecution to go forward would violate the Double Jeopardy Clause. See, e.g., Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-03, 104 S.Ct. 1805, 1810-11, 80 L.Ed.2d 311 (1984) (plurality op.); Gilliam v. Foster, 75 F.3d 881, 904 (4th Cir.1996); Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, 506 U.S. 1048, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993). This is a nearly classic case for invoking the exception. ³ Thus, we hold that the petitioner may seek federal habeas corpus relief without first undergoing trial on the challenged indictment.

B.

The second procedural hurdle results from the petitioner's bypassing of the Law Court en route to a federal forum. This shortcut flouts the general rule that a petitioner must exhaust all available state remedies before federal habeas jurisdiction attaches. See, e.g., Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995); Nadworny, 872 F.2d at 1096-97; see generally 28 U.S.C. § 2254(b). We think that the shortcut is permissible in this case.

Although the exhaustion rule is important, it is not immutable: exhaustion of remedies is not a jurisdictional prerequisite to a habeas petition, but, rather, a gatekeeping provision rooted in concepts of federalism and comity. See Nadworny, 872 F.2d at 1096 ("Requiring that remedies be exhausted in state courts is merely comity's juridical tool, embodying the federal sovereign's respect for the state courts' capability to adjudicate federal rights."). Consistent with this rationale, the federal courts have carved a narrow futility exception to the exhaustion principle. If stare decisis looms, that is, if a state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, then the state judicial process becomes ineffective as a means of protecting the petitioner's rights. In such circumstances, the federal courts may choose to relieve the petitioner of the obligation to pursue available state appellate remedies as a condition precedent to seeking a federal anodyne. See Piercy v. Black, 801 F.2d 1075, 1077-78 (8th Cir.1986); Robinson v. Berman, 594 F.2d 1, 3 (1st Cir.1979). The law, after all, should not require litigants to engage in empty gestures or to perform obviously futile acts.

Here, Judge Brody recognized that the Law Court's very recent decision in Savard propelled this case within the perimeter of the futility exception to the exhaustion rule. Thus, the judge determined that it would be bootless for the petitioner to invite state appellate review and excused him from doing so. See Thompson, 896 F.Supp. at 221. Because the finding of futility cannot be faulted, we uphold the court's decision to allow the habeas case to proceed.

III

Turning to the merits of the controversy, we borrow heavily from our decision in United States v. Stoller, 78 F.3d 710 (1st Cir.1996). Stoller involved a challenge, on double jeopardy grounds, to a criminal prosecution for misapplication of bank funds following the imposition of an administrative sanction (a debarment order precluding Stoller from employment or other participation in the banking industry). See id. at 713-14. In addressing Stoller's challenge, we delineated the analytic framework that governs a court's appraisal of most civil sanctions that are alleged to be disguised punishments. ⁴ We explained that, in such cases, courts must examine "the totality of the circumstances, including the source of the authority under which the [civil sanction] is imposable, the goals underpinning the authorizing statute, the order itself, the purposes it serves, and the circumstances attendant to its promulgation." Id. at 721. If this holistic examination indicates that the sanction is better characterized as remedial rather than as punitive, it will not be deemed to constitute punishment for double jeopardy purposes. See id. at 716.

A.

The first step a court must take in assessing the aggregate circumstances is to inspect the statute under which the sanction has been imposed. See id. at 719. In this instance the statute, 29 M.R.S.A. § 1311-A, contains a statement of purpose that simplifies the judicial task. The proviso serves to safeguard travelers on the state's roads, see 29 M.R.S.A. § 1311-A(1)(A), by "remov[ing] quickly from the public highways ... those persons who have shown themselves to be a safety hazard by operating or attempting to operate" motor vehicles after imbibing quantities of alcohol, id. § 1311-A(1)(B). So viewed, the license suspension proviso furthers a quintessentially remedial goal (public safety) and it is, therefore, not punitive in the relevant constitutional sense. Accord State v. Hickam, 235 Conn. 614, 668 A.2d 1321, 1328 (1995) (finding similar statutory scheme to be remedial in nature); Savard, 659 A.2d at 1268 (finding 29 M.R.S.A. § 1311-A to be remedial in nature).

The petitioner does not dispute that public safety is both the driving force behind the statute and a legitimate area of legislative concern. Still, he attempts a flanking maneuver. This statute, he argues, must have a punitive aim because the suspension period increases with the number of violations. See 29 M.R.S.A. §§ 1311-A(5)(B), 1312-B(2). The argument...