Ferguson v. Cardwell
| Decision Date | 23 December 1971 |
| Docket Number | No. 71-1392.,71-1392. |
| Citation | 452 F.2d 1011 |
| Parties | Clarence Vernon FERGUSON, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Clarence Vernon Ferguson, pro. per.
William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen. of Ohio, for respondent-appellee.
Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and ROTH, District Judge*.
Ferguson has appealed from an order of the District Court denying his application for a writ of habeas corpus.
The Grand Jury of Cuyahoga County, Ohio, in the first count of an indictment, charged him with killing in the perpetration of a robbery, and in the second count with killing with premeditated malice.
Ferguson and an accomplice were robbing a drugstore in Cleveland, Ohio; both men had guns. Ferguson shot Benjamin Kaufman in the shoulder and, when leaving the store after the robbery, shot him in the head. It was a brutal murder.
Two counsel were appointed to defend Ferguson. A jury was impaneled and sworn, and one of the state's witnesses was examined. The defendant then, after consultation with his family and lawyers, withdrew his pleas of not guilty and pleaded guilty to each count.
The jury was discharged and in accordance with Ohio law a three-Judge Court was convened in a new trial. After hearing all of the evidence the Court found defendant guilty on both counts, withholding mercy on the first count and recommending mercy on the second count. The death sentence was imposed on the first count and life imprisonment on the second count, the sentences to run concurrently. The Court denied defendant's motion for leave to withdraw his pleas of guilty.
The Court of Appeals affirmed the judgment and sentence. The Supreme Court of Ohio admitted the case for review and affirmed with two judges dissenting.1 State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964).
The principal error assigned here, as well as in the Supreme Court of Ohio, was that defendant was subjected to double jeopardy, in violation of the state and Federal Constitutions. Appellant claims that he killed only one man and hence he cannot be prosecuted for committing more than one offense.
Under Ohio law, killing in the perpetration of a robbery and killing with premeditated malice are two separate and distinct offenses. Each requires proof of a fact which the other does not require. State v. Ferguson, supra. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; Lowther v. Maxwell, 347 F.2d 941 (6th Cir. 1965).
Since the death penalty was imposed, the life sentence is regarded as surplusage. State v. Ferguson, supra.
In any event, the prohibition against double jeopardy is directed only against successive...
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People v. Lowe
...not violate double jeopardy. The Ohio Supreme Court's decision was affirmed by the Sixth Circuit Court of Appeals in Ferguson v. Cardwell, 452 F.2d 1011 (6th Cir.1971), cert. denied, 409 U.S. 854, 93 S.Ct. 187, 34 L.Ed.2d 97 (1972). The court of appeals applied Ohio law and held that the pr......
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Hebel v. State, S
...States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; United States v. Tinney (3rd Cir., 1973), 473 F.2d 1085; Ferguson v. Cardwell (6th Cir., 1971), 452 F.2d 1011. The second assignment of error raises the question of whether the granting of immunity to one of the other men involved so......
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United States v. Hale
...Brennan, concurring). But there can be no doubt that the Blockburger case still remains the law. See, e. g., Ferguson v. Cardwell, 452 F.2d 1011, 1012 (6th Cir. 1971); Downey v. Peyton, 451 F.2d 236, 238 (4th Cir. 1971); Akin Distributors of Fla., Inc. v. United States, 399 F.2d 306 (5th Ci......
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United States ex rel. Duff v. Zelker, 180
... ... Two co-defendants, Richard Ferguson and Ike Hill, signed statements in which they confessed to being in the car that was used for the robbery, though they denied leaving it during the ... ...