Cherry v. Director, State Bd. of Corrections

• Decision Date: 17 March 1980
• Docket Number: No. 79-1525,79-1525
• Parties: James Walter CHERRY, Petitioner-Appellant, v. DIRECTOR, STATE BOARD OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1262

613 F.2d 1262

James Walter CHERRY, Petitioner-Appellant, v. DIRECTOR, STATE BOARD OF CORRECTIONS, Respondent-Appellee.

No. 79-1525.

United States Court of Appeals Fifth Circuit.

March 17, 1980.

J. Michael Lamberth, Atlanta, Ga. (Court-appointed), for petitioner-appellant.

John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, VANCE and KRAVITCH, Circuit Judges.

TUTTLE, Circuit Judge:

Appellant James Cherry seeks a reversal of the judgment of the district court denying him habeas corpus relief from a 1963 conviction in the Superior Court of Fulton County, Georgia for robbery by use of an offensive weapon. We reverse the district court for the reasons set forth in this opinion.

In October 1963, Cherry was put on trial in Georgia state court on the robbery charge. ¹ On the first day of trial, at 4:30 p. m., after two witnesses had already testified and a third was being examined, the trial judge was informed that the mother of one of the jurors had died. ² After determining the veracity of the report, the judge met with counsel for both the state and the defendant and asked counsel for the defendant whether he would waive the presence of the juror and proceed with 11 jurors. Counsel for the defendant responded that he wished to continue with the 12 jurors previously selected at which point the trial judge dismissed the jury for the rest of the day.

The next day the trial judge dismissed the juror from the trial because "it would be inhuman, indecent, inappropriate, cruel and an injustice to require Mr. Royce Terry (the juror) to have been in court this morning." The judge then declared a mistrial.

At the second trial, Cherry was convicted and received a sentence of life imprisonment. On direct appeal, Cherry made several arguments for a new trial or for his release. He alleged that the second trial constituted double jeopardy but this point was overruled, apparently on the basis that the bill of exceptions was not properly perfected. ³ His other points of contention dealing with procedural matters in the second trial were denied also.

In his state habeas petition, Cherry argued only that the second trial violated his Fifth Amendment right not to be placed in double jeopardy. That petition was denied in November 1976 without an opinion.

In his federal habeas petition, Cherry argued the double jeopardy contention, as well as some of the procedural contentions he had raised on direct appeal in the state court. ⁴ Cherry also raised for the first time in federal court the issue that the state had adduced testimony from an individual who had shared a cell with him by making a deal with that individual. The failure of the state to disclose the deal, Cherry charged, was a ground for relief under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

The district court denied Cherry's petition for a writ of habeas corpus, adopting the recommendations of a magistrate. In his opinion, the magistrate concluded first, that Cherry had exhausted his state remedies as to the double jeopardy issue and that the trial judge's action in terminating the first trial was based on manifest necessity within the meaning of Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Therefore, Cherry's right not to be placed in double jeopardy had not been violated. He then concluded, as to the Giglio issue, that Cherry had "purposefully bypassed an available state remedy" by failing to raise it earlier and therefore the issue would not be considered. Other procedural contentions of Cherry's surrounding the second trial were also denied. This appeal ensued.

We first must determine whether the defendant exhausted his state remedies, a requirement codified at 28 U.S.C. § 2254(b), (c) (1977). ⁵ The doctrine dictates that a state prisoner's claim first be presented to the state court system and exhausted there. ⁶ One reason given for the exhaustion doctrine is that:

it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . . . Fay v. Noia, 372 U.S. 391, 419-20, 83 S.Ct. 822, 838, 9 L.Ed.2d 837 (1963) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950).

There have been circumstances delineated, however, when the exhaustion requirement does not apply. ⁷

In Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978), this Court found that if a prisoner had not exhausted state remedies as to all claims in a petition, then the district court must dismiss the claim. However, this Court held that if "a district court erroneously reaches the merits of an exhausted claim in a mixed petition and an appeal is taken from its dispositive order, we shall review the merits of the claim." Id. at 362.

At the state level, Cherry appealed his conviction alleging double jeopardy and his conviction was affirmed in Cherry v. State, 220 Ga. 695, 141 S.E.2d 412 (1965). He again raised the double jeopardy issue in a state application for habeas which was denied by both the trial court and the Georgia Supreme Court. Therefore, Cherry exhausted his state remedies as to the double jeopardy issue.

However, Cherry did not raise the Giglio issue on either direct appeal or in his state application for a writ of habeas corpus, raising it for the first time in federal district court. According to Georgia law:

All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of the State of Georgia otherwise requires, or any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. Ga.Code Ann. § 50-127(10)(1979).

We read this statute as saying that a petitioner who failed to allege a violation in his original state petition is not barred from raising it in the state court until a state court judge considers the subsequent petition and decides the matter could "reasonably have been raised" before. If the judge has not decided that, then a possible state remedy has not been completely exhausted. Since Cherry has failed to bring the Giglio claim before any Georgia trial judge, he has not exhausted his state remedies as required on that claim. ⁸

Having decided, however, that Cherry has not exhausted his remedies on the Giglio issue, we are not foreclosed from considering his double jeopardy claim since the district court erroneously reached the merits of an exhausted claim in these mixed petitions. Galtieri, 582 F.2d at 362. Reaching and considering that double jeopardy claim, we find Cherry's Fifth Amendment right not "to be twice put in jeopardy of life or limb" to have been violated.

We must first consider the proper standard to be applied in ruling on the district court's order denying Cherry habeas relief. The state urges that a "clearly erroneous" standard be applied. See White v. Estelle, 566 F.2d 500, 502 (5th Cir. 1978). However, the appellant is correct in responding that the district court's holding is subject to a broader, more lenient standard of review. The "clearly erroneous" rule referred to in White applies to factual determinations made by a district court. ⁹ The determination before us here concerning the possible application of double jeopardy is clearly a question of law.

The legal standards to be applied in cases dealing with claims of double jeopardy have been discussed at length, both in this court and in the Supreme Court. The Fifth Amendment to the United States Constitution commands that no "person (shall) be subject for the same offence to be twice put in jeopardy of life or limb." ¹⁰ It is a maxim with roots deep in the history of jurisprudence. ¹¹ As Mr. Justice Black once wrote in dissent, "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization." Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (1958) (Black, J., dissenting).

The point where most analyses begin as to when jeopardy first attaches is with Mr. Justice Story's opinion in United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824) that said:

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

22 U.S. at 579. Through the years this standard of "manifest necessity" for a mistrial has continued to be applied by courts in determining whether or not a mistrial and subsequent trial constitutes double jeopardy. ¹² Thus it has been held that the failure of a jury to agree on a verdict of either acquittal or conviction does not bar retrial of the defendant, United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824); nor does the reversal of a conviction on appeal, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). ¹³ Yet despite the many attempts to expound upon the meaning of what constitutes "manifest necessity," no precise formula has yet emerged. See Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973) ("virtually all of the cases turn on the particular facts and thus escape meaningful categorization.") ¹⁴

In United States v. Starling, 571 F.2d 934 (1978), this Court set out some of the broad standards to be applied in determining whether a mistrial barred a second prosecution:

...