Delk v. Atkinson

• Citation: 665 F.2d 90
• Decision Date: 25 November 1981
• Docket Number: No. 80-5376,80-5376
• Parties: Samuel DELK, Petitioner-Appellee, v. Frank D. ATKINSON, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 90

665 F.2d 90

Samuel DELK, Petitioner-Appellee, v. Frank D. ATKINSON, Respondent-Appellant.

No. 80-5376.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1981.

Decided Nov. 25, 1981.

William M. Leech, Atty. Gen. of Tennessee, Robert L. Jolley, Jr., Senior Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant.

Lionel R. Barrett, Jr., William Redick, Nashville, Tenn., for petitioner-appellee.

Before EDWARDS, Chief Judge, and LIVELY and JONES, Circuit Judges.

LIVELY, Circuit Judge.

The district court granted a writ of habeas corpus which had the effect of enjoining retrial of the petitioner on a murder charge. Following his jury conviction of murder in the second degree in a state trial court the petitioner appealed to the Tennessee Court of Criminal Appeals, and ultimately to the Tennessee Supreme Court claiming, inter alia, that the verdict of the jury was not supported by sufficient evidence. The supreme court reversed for trial errors and remanded for a new trial. In doing so it specifically found that the evidence was sufficient to sustain the conviction, though one justice dissented from this finding. The petitioner then sought pretrial habeas relief in the district court. The district court reviewed the evidence and concluded that the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), had not been met since no rational trier of fact could have found from that evidence proof beyond a reasonable doubt of every element of the offense of murder. Delk v. Atkinson, 498 F.Supp. 1282 (1980). The district court concluded that a retrial for the same homicide would constitute double jeopardy and issued the writ.

I.

A.

Though the State does not contend specifically that the petitioner failed to exhaust his state remedies we have examined the record to satisfy ourselves. Petitioner did not present his double jeopardy claim to a state trial court in bar of a retrial following reversal of his conviction. However, the Tennessee Supreme Court recognized the double jeopardy implications of the sufficiency argument, and the dissenting judge argued that there should be an outright reversal with directions to dismiss the charge rather than a remand for a new trial. In view of the fact that the Tennessee Supreme Court had decided that the evidence was sufficient, any attempt to present this double jeopardy claim to a state trial court would have been futile. See Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir. 1978). The present case differs from Webster v. Frey, 665 F.2d 88 (6th Cir.), decided today. In that case the Supreme Court of Kentucky reversed Webster's conviction for a procedural error and did not consider his sufficiency claim. Webster had never presented his claim of double jeopardy to a state court

and this issue had not been implicitly decided by the reviewing court. There was no basis for a claim of futility and we concluded that he had not exhausted his state remedies.

B.

Pointing out that the Supreme Court of Tennessee did not reverse Delk's conviction for insufficiency of the evidence, the appellant asserts that the Double Jeopardy Clause is not offended by a retrial following reversal for trial errors. As we note, infra, there is support for this contention in language of the Supreme Court and this court. Nevertheless we believe that when a substantial issue of sufficiency of the evidence to sustain a conviction is properly raised on appeal but reversal is based on some other error after the court considers the evidence and finds it sufficient a defendant may seek to prevent a retrial by bringing a habeas action based on a claim of double jeopardy, provided he has exhausted his state remedies. This conclusion is founded upon the principle that one who has been convicted on the basis of proof which is insufficient to support the conviction should not be required to endure a second trial. The Double Jeopardy Clause does not just protect from a second conviction; it also protects from exposure to a second trial. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

In Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978), the Supreme Court settled a question which had been clouded by some of its earlier decisions, holding that a defendant may not be retried where a reviewing court has reversed his conviction upon a determination that the evidence at the prior trial was insufficient to sustain the jury verdict. Burks involved a direct appeal in a federal prosecution. In the companion case of Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), a habeas corpus action, the Court applied Burks in holding that a state may not retry a defendant after his conviction has been reversed by an appellate court on the ground of insufficiency of the evidence to sustain the conviction.

In Burks the Court stated that when an appellate court reverses for errors in the proceedings leading to conviction the Double Jeopardy Clause does not preclude a retrial. 437 U.S. at 14-15, 98 S.Ct. at 2148-49. In so holding the Court quoted from its earlier decision in United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964):

"The principle that (the Double Jeopardy Clause) does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence." United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (emphasis supplied).

437 U.S. at 14, 98 S.Ct. at 2149. In a third double jeopardy case decided on the same day as Burks and Greene, the Supreme Court stated as one of at least two "venerable principles of double jeopardy" that "(t)he successful appeal of a judgment of conviction on any ground other than insufficiency of the evidence to support the verdict ... poses no bar to further prosecution on the same charge." United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65 (1978). See also Gully v. Kunzman, 592 F.2d 283, 288 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979).

The present case differs from Burks in that the reversal was for procedural error. Nevertheless, if the evidence at the prior trial was actually insufficient under the standard of Jackson v. Virginia, the defendant should have been acquitted, and to expose him to a second trial on the same charge would appear to be a violation of the prohibition against double jeopardy. "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceedings." Burks, supra, 437 U.S. at 11, 98 S.Ct. at 2147. We conclude that the Bearing in mind that the Double Jeopardy Clause does not merely bar a second conviction, but also protects a person from being twice put on trial for the same offense, Abney v. United States, supra, 431 U.S. at 661, 97 S.Ct. at 2041, we believe the holdings in Burks and Jackson v. Virginia lead to the conclusion that there must be some means of testing the sufficiency before a second trial takes place. This follows the rationale of our decision in Gully v. Kunzman, supra. Thus we hold that when a state reviewing court specifically finds the evidence sufficient to support a conviction but reverses on other grounds and orders a new trial, the defendant may seek to prevent a retrial on double jeopardy grounds by bringing a federal habeas corpus proceeding after state remedies have been exhausted.¹

statements in Burks, Tateo and Scott refer to cases where no substantial issue of sufficiency of the evidence has been presented to and decided by a reviewing court. Where a reviewing court has considered the issue and found the evidence sufficient and the claim of double jeopardy has been urged on the reviewing court, that claim stands on no different footing than any other habeas claim of constitutional violation. The only distinguishing feature is that the rights preserved by the Double Jeopardy Clause require that the issue be resolved prior to a retrial rather than following a second conviction.

C.

The appellant also argues that 28 U.S.C. § 2254 does not permit this habeas corpus action because petitioner was not "a person in custody pursuant to the judgment of a state court ...." Petitioner's murder conviction had been reversed and he was free on bail at the time his application for a writ of habeas corpus was filed. However, this application was not filed under 28 U.S.C. § 2254 alone. It also sought relief under 28 U.S.C. § 2241(c)(3), which does permit the issuance of the writ at the instance of one who claims he is in custody in violation of the Constitution of the United States, regardless of whether a judgment has been rendered. Atkins v. Michigan, 644 F.2d 543, 546 n.1 (6th Cir. 1981); Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975). One who has been released on bail while awaiting trial is in "custody" for the purposes of § 2241. See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Russo v. Superior Court, 483 F.2d 7

(3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973).

D.

We recognize that the application for habeas relief in Jackson v. Virginia, supra, was brought pursuant to 28 U.S.C. § 2254 rather than § 2241(c)(3) and that it followed affirmance rather than reversal of a state court conviction. These differences do not preclude federal habeas application of the Jackson test of sufficiency of the evidence in the pretrial setting of this case. Several different constitutional requirements which have been delineated in a series of recent Supreme Court opinions lead to this conclusion. These are the due process requirement of sufficiency of the evidence and the double jeopardy requirements that one who has been...