French v. Estelle

• Decision Date: 29 December 1982
• Docket Number: No. 82-1116,82-1116
• Citation: 696 F.2d 318
• Parties: Ray FRENCH, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

696 F.2d 318

Ray FRENCH, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant.

No. 82-1116.

United States Court of Appeals Fifth Circuit.

Dec. 29, 1982.

As Amended Jan. 6, 1983.

Douglas M. Becker, Charles A. Palmer, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.

Kim Andres, Houston, Tex. (Court-Appointed), for petitioner-appellee.

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

ON SUGGESTION FOR REHEARING EN BANC

Before RUBIN, RANDALL and JOLLY, Circuit Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a petition for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16), the suggestion for rehearing en banc is DENIED.

In its suggestion for rehearing en banc, the state reiterates its contention that under Fed.R.App.P. 4(a), this court was precluded from considering the petitioner's double jeopardy claim because of his failure to file a cross-appeal. We rejected this claim in the panel opinion, French v. Estelle, 692 F.2d 1021, 1025 n. 5 (5th Cir.1982), on the ground that we could affirm the district court's grant of habeas corpus relief on the basis of any claim supported by the record. The state maintains that we have not simply affirmed the district court's decision, but have modified that decision to enlarge the petitioner's rights under the writ. See Stachulak v. Coughlin, 520 F.2d 931 (7th Cir.1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976).

We take this opportunity to elaborate further on our comments in the earlier opinion. It is well established that an appellate court is not precluded from considering an issue not properly raised below in a civil proceeding, if manifest injustice would otherwise result. In Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), the Supreme Court stated that a federal appellate court would certainly be justified in resolving an issue that was not passed on below "where the proper resolution [was] beyond any doubt ... or where 'injustice might otherwise result.' " 428 U.S. at 121, 96 S.Ct. at 2877 (citations omitted). In Empire Life Insurance Co. v. Valdak Corp., 468 F.2d 330, 334 (5th Cir.1972), we held that "it is well established that as a matter of discretion, an appellate court could pass upon issues not pressed before it or raised below where the ends of justice will best be served by doing so," and that this court has a "duty to apply the correct law." (citations omitted) (emphasis in original) See also Thorton v. Schweiker, 663 F.2d 1312, 1315 (5th Cir.1981) (rule that court will not consider issue not raised below on appeal is not inflexible and gives way to prevent a miscarriage of justice); Weingart v. Allen & O'Hara, Inc., 654 F.2d 1096, 1101 (5th Cir.1981) (rule that appellate court will consider only errors of which appellant specifically complains is not inflexible); Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir.1976) (rule requiring issues to be raised below "can give way when a pure question of law is involved and a refusal to consider it would result in a miscarriage of justice").

The considerations that allow us to reach an issue not raised below also allow us to reach an issue of law in a habeas case that was raised below and argued and briefed to this court, where our resolution of that issue is necessary to prevent a miscarriage of justice. The state in this case failed to prove the proper chronology of the prior offenses needed to enhance the petitioner's sentence to life imprisonment under Tex.Penal Code Ann. Sec. 12.42(d) (Vernon 1974). As discussed in our earlier opinion, the bringing of a second enhancement-to-life proceeding, under section 12.42(d) on the basis of the same "priors," would result in a clear violation of the double jeopardy clause of the United States Constitution. Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1981), cert. granted, --- U.S. ----, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982). See also Ex parte Augusta, 639 S.W.2d 481 (Tex.Cr.App.1982) (en banc) (adopting...