Dombkowski v. Johnson

• Decision Date: 05 December 1973
• Docket Number: No. 73-1324.,73-1324.
• Citation: 488 F.2d 68
• Parties: Floyd A. DOMBKOWSKI, Petitioner, v. Perry JOHNSON, Warden for the State Prison of Southern Michigan, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.2d 68 (1973)

Floyd A. DOMBKOWSKI, Petitioner, v. Perry JOHNSON, Warden for the State Prison of Southern Michigan, Respondent.

No. 73-1324.

United States Court of Appeals, Sixth Circuit.

Argued October 2, 1973.

Decided December 5, 1973.

Leo H. Hildebrandt, Jr. (Court appointed) Cincinnati, Ohio, for appellant.

Thomas A. Carlson, Asst. City Sol. Gen., for appellee; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., on brief.

Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the District Court denying petitioner's request for a writ of habeas corpus.

While sitting in a Grand Rapids bar on the evening of February 26, 1970, petitioner was approached by two small boys who offered to sell him some candy. Petitioner asked the boys to meet him in an alley behind the club ostensibly for the purpose of paying for the candy, but when petitioner arrived he allegedly attempted to pull down the trousers of one of the boys.

The boys fled and reported the incident to their mother who called the police. The mother and a male companion then located petitioner outside another nearby tavern. The male companion restrained petitioner until two policemen arrived.

After listening to an account of the events by the boys' mother and noting that the petitioner was intoxicated and using violent speech, the policemen arrested him on a charge of being drunk and disorderly in violation of Grand Rapids Ordinance Code § 9.134. The next day petitioner entered a plea of guilty to this city charge and was sentenced to 18 days in jail.

Subsequently petitioner was charged with and convicted in a Michigan state court of attempting to take indecent liberties with a minor child. M.C.L.A. § 750.336. Petitioner unsuccessfully appealed this state felony conviction to the Michigan Court of Appeals, People v. Dombkowski, 35 Mich.App. 264, 192 N.W.2d 286 (1971), and later to the Michigan Supreme Court, 386 Mich. 757 (1971). Although the petitioner alleged five assignments of error in the Court of Appeals, he alleged only one assignment of error in the Supreme Court.

The petitioner next field a petition for a writ of habeas corpus in the United States District Court. His primary contention — the only issue raised on both appeals in the Michigan state courts — was that he was placed in double jeopardy in violation of the Fifth Amendment by being placed on trial for indecent liberties by the state of Michigan after having previously been tried and found guilty on the city charge of being drunk and disorderly. The double jeopardy provision of the Fifth Amendment has been applied to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The District Judge held that petitioner was not placed twice in jeopardy because the drunk and disorderly conviction was based on facts and circumstances other than the conduct which led to his conviction for attempting to take indecent liberties with a minor child. We agree.

Petitioner relies on Ex Parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). In each of those cases, the Supreme Court granted relief to a petitioner on the basis of a finding that the petitioner was twice placed in jeopardy.

Those cases are, however, clearly distinguishable from the instant case in that in each of them both trials were based on charges that arose out of the same factual episode. In Nielsen, the court granted a writ of habeas corpus where a petitioner had been tried first on a charge of unlawful cohabitation and later on a charge of adultery for the same instance of cohabitation. In Ashe, where the accused had allegedly robbed six poker players, the court would not sanction trial of the accused for the robbery of one player after the accused had previously been acquitted of the robbery of another player. In Waller, the court held that the theft of a mural from a city...