Deloney v. Estelle

• Decision Date: 06 September 1983
• Docket Number: No. 81-1289,81-1289
• Citation: 713 F.2d 1080
• Parties: Clifford Ray DELONEY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1080

713 F.2d 1080

Clifford Ray DELONEY, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 81-1289.

United States Court of Appeals, Fifth Circuit.

Sept. 6, 1983.

Barry Abrams, Houston, Tex., for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

On October 18, 1976, Clifford Ray Deloney was indicted by the Dallas County grand jury for burglary of a vehicle. ¹ This charge was "enhanced" by paragraphs charging that Deloney had previously been convicted of two felony offenses. Under Texas law, conviction upon this charge as enhanced carried mandatory life imprisonment. ² On November 22, 1976, Deloney was indicted for forgery for forging and attempting to negotiate a $202.00 check. Forgery, a third degree felony, carries a potential punishment of from two to ten years imprisonment. Tex.Penal Code Ann. arts. 12.34, 32.21(d) (Vernon 1974).

On January 21, 1977, with the assistance of an attorney, Deloney pleaded guilty to both indictments. Pursuant to a plea bargain, the prosecution agreed to dismiss one of the enhancement counts on the burglary indictment, thereby eliminating the mandatory life sentence. ³ Deloney was sentenced to fifteen years imprisonment on the burglary charge and two years on the forgery charge. On February 3, 1977, Deloney wrote the presiding judge of the sentencing court, complaining that his attorney had not fully disclosed pertinent information to him prior to his making his plea, and explaining that he felt he had been "coerced" into pleading guilty. Deloney's court-appointed attorney then filed a motion for a new trial in both the forgery and burglary cases, alleging "that the [court's] verdict is contrary to the law and evidence." That same day, the trial court granted the motion.

A week later, Deloney was reindicted for the same forgery offense. This time, however, the prosecutor added the two felony convictions which had previously been attached to the burglary charge to the forgery charge for enhancement purposes. As a result of the enhanced forgery indictment, Deloney's potential punishment on the charge increased from ten years to life. See Tex.Penal Code Ann. arts. 12.42(d), 12.34 (Vernon 1974). The original burglary charge, with its one enhancement count, remained outstanding. ⁴ Deloney went to trial on the forgery charge and was found guilty. He pleaded "true" to the enhancement paragraphs and was sentenced to a mandatory life imprisonment. On May 16, 1978, the prosecutor dismissed the remaining enhancement paragraph on the burglary indictment. Deloney pleaded guilty to the burglary charge and was sentenced to two years, with credit for time served.

Deloney's conviction and sentence on the enhanced forgery charge were affirmed by the Texas Court of Criminal Appeals in January, 1980. On November 17, 1980, Deloney filed a petition for a writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. § 2254, alleging (1) that his reindictment on the forgery charge following his successful attack on his conviction constituted prosecutorial vindictiveness; (2) that he was denied due process and equal protection of the law when the trial court granted his motion for a new trial but failed to enter a judgment of acquittal; and (3) that, because his first conviction on the forgery charge was overturned on grounds of insufficiency of the evidence, his retrial was in violation of his right to be free from double jeopardy. The district court, adopting the findings and recommendation of the United States magistrate, denied the writ. This appeal follows. ⁵

I. Prosecutorial Vindictiveness

Deloney's major contention is that his reindictment on the former forgery charge supplemented by two enhancement provisions constituted prosecutorial vindictiveness, in violation of due process. He asked that we reverse his conviction as per se violative of the Fourteenth Amendment; alternatively, he asks that we remand to the district court with instructions that the state be required to prove that his reindictment was motivated by legitimate reasons.

Principles established by the Supreme Court in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) and interpreted by this Court in Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), and Jackson v. Walker, 585 F.2d 139 (5th Cir.1978), make it clear that the substantial discretion traditionally accorded state prosecutors in bringing a defendant to trial is limited by the due process guarantees of the Fourteenth Amendment. Once an accused has been convicted and successfully exercises his statutory or constitutional right to obtain relief from his conviction, the state may not "marshal more numerous or severe charges against [him] in order to punish him for availing himself of [these] appropriate remedies or discourage future defendants from a similar exercise of their rights." Miracle v. Estelle, 592 F.2d 1269, 1272 (5th Cir.1979), quoting Blackledge v. Perry, supra, 417 U.S. at 27, 94 S.Ct. at 2102.

In Blackledge, the defendant was convicted of an assault misdemeanor in state court and sentenced to six months imprisonment. Following this conviction, the defendant exercised his statutory right to obtain a trial de novo in a higher court. The prosecutor then obtained a superseding indictment charging the accused with a felony, assault with intent to kill and inflict serious bodily injury, based on the same act as the previous charge. The defendant pleaded guilty to this new indictment and was sentenced to five to seven months imprisonment. In holding that the second indictment violated the due process clause, the Supreme Court stressed that other defendants might perceive the more serious felony charge as a "retaliatory" measure of the exercise of the right to appeal. "A person convicted of an offense is entitled to pursue his statutory right [to attack his conviction] without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." 417 U.S. at 28-29, 94 S.Ct. at 2102-2103. The Court went on to explain that

"[t]he rationale of our judgment ..., however, [is] not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, ... 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the [prosecutor].' " 417 U.S. at 28, 94 S.Ct. at 2102, quoting North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969).

In implementing the Blackledge decision, this Court has consistently recognized that evaluation of a prosecutorial vindictiveness claim involves a balancing of two antithetical interests: (1) the due process right of the defendant to exercise his right of appeal without fear of increased potential punishment, and (2) the prosecutor's discretion to control the decision to prosecute. Miracle v. Estelle, supra, 592 F.2d at 1272; Hardwick v. Doolittle, supra, 558 F.2d at 301; Jackson v. Walker, supra, 585 F.2d at 143. As we explained in Jackson, the Court must "weigh the extent to which allowing the second [prosecution of the defendants] will chill the exercise of the defendants' appeal right against the extent to which forbidding the second [prosecution] will infringe on the exercise of the prosecutor's independent discretion." 585 F.2d at 145.

The prerequisite to any Blackledge analysis is that the defendant must establish a prima facie case of vindictiveness. Miracle v. Estelle, supra, 592 F.2d at 1275; Jackson v. Walker, supra, 585 F.2d at 146. In cases where the defendant is retried following successful challenge of an earlier conviction, this burden is satisfied by a showing that the second charge is in fact harsher than the first. The critical question in this case, therefore, is whether the prosecutor's decision to reindict Deloney on the forgery charge with two enhancement paragraphs exposed him to more severe charges than he had originally faced under the first indictment when the only reason that a portion of the original indictment was reduced was because of defendant's plea bargain. ⁶

Deloney argues that the second indictment represents a "bald escalation of the charges against him" because his potential punishment on the forgery charge increased from ten years to life. The state counters that, because the prior convictions alleged in the second indictment were the same as those originally alleged in the first indictment, Deloney faced the same possibility of mandatory life imprisonment as he had when the prior convictions were attached to the burglary charge.

It is obvious to us that the critical difference between the two positions lies in the focus each side asks this Court to adopt. Deloney would have us evaluate his claim by examining the forgery charge alone. The state, on the other hand, submits that an assessment of whether the prosecutor did, in fact, reindict Deloney on more serious charges can properly be accomplished only if we examine the totality of the charges pending against him before and after the withdrawal of his guilty plea. We agree. Although Deloney's application attacks his conviction only on the enhanced forgery charge, the underlying facts upon which his habeas application are predicated took place in the disposition of his plea of guilty in an admitted plea bargain to a previous indictment charging him with both forgery and...