Gully v. Kunzman, 78-3605

• Decision Date: 18 January 1979
• Docket Number: No. 78-3605,78-3605
• Parties: Terry Lee GULLY and Billy Ray Gully, Petitioners-Appellants, v. George H. KUNZMAN, Judge, Jefferson Circuit Court, and Donald E. Bordenkircher, Superintendent Kentucky State Penitentiary, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 283

592 F.2d 283

Terry Lee GULLY and Billy Ray Gully, Petitioners-Appellants, v. George H. KUNZMAN, Judge, Jefferson Circuit Court, and Donald E. Bordenkircher, Superintendent Kentucky State Penitentiary, Respondents-Appellees.

No. 78-3605.

United States Court of Appeals Sixth Circuit.

Argued Dec. 15, 1978.

Decided Jan. 18, 1979.

Richard L. Receveur, Asst. Public Defender, Louisville, Ky., for Terry Lee Gully.

Kenneth L. Sales, Louisville, Ky., for Billy Ray Gully.

Robert F. Stephens, Atty. Gen. of Ky., C. David Clauss, Asst. Atty. Gen., Frankfort, Ky., for respondents-appellees.

Before LIVELY and MERRITT, Circuit Judges, and TAYLOR, ^* District Judge.

MERRITT, Circuit Judge.

Petitioners, Terry Lee Gully and Billy Ray Gully, are in state custody in Kentucky awaiting a retrial for murder and other crimes after their earlier convictions were reversed on appeal. The State did not seek the death penalty at the first trial, but the trial court has now ruled that petitioners may be subjected on retrial to the provisions of Kentucky's recently enacted death penalty statute. The question in this case is whether petitioners are entitled to "pre-trial" habeas corpus relief on the ground that their retrial subject to the risk of receiving the death penalty upon conviction will offend principles of due process and double jeopardy.

The District Court thought all of the Gullys' claims premature and denied their petition summarily. We agree with the District Court's refusal to rule upon the due process claims, but, unlike the District Court, we have reached the merits of the double jeopardy claims. We affirm the order denying habeas corpus relief because after careful consideration, we have concluded that there is no double jeopardy bar to petitioners' reprosecution under the new death penalty statute.

I.

In September 1975, the Gully brothers were each charged with one count of armed robbery, Ky.Rev.Stat. § 433.140 (1970), willful murder, Ky.Rev.Stat. § 435.010 (1970), and malicious shooting without wounding, Ky.Rev.Stat. § 435.170 (1970). ¹ The crimes were allegedly committed during a grocery store hold-up in December 1974. After a jury trial in the Circuit Court of Jefferson County, Kentucky, the Gullys were convicted on all charges and were sentenced to concurrent terms of life imprisonment on the murder and armed robbery counts and to a term of twenty-one years' imprisonment on the malicious shooting count. The convictions were ultimately reversed by the Kentucky Supreme Court for trial errors unrelated to the sufficiency of the evidence. The State plans to retry the Gullys for the same offenses on January 23, 1979.

This sequence of events raises serious questions about the propriety of the State's plans to reprosecute the Gullys when considered against the backdrop of evolving Supreme Court doctrine concerning the constitutionality of the death penalty and the series of changes in Kentucky law prompted thereby.

The murder and armed robbery statutes the Gullys are charged with violating provide simply that the offenses described are punishable, Inter alia, "by death." When the crimes were committed in December 1974, however, death was not available as a punishment for these offenses, because the Kentucky Supreme Court had determined in 1973 ² that the procedure for imposing the death penalty in Kentucky was inconsistent with the United States Supreme Court's opinion in Furman v. Georgia, ³ and the state legislature had yet to make any change in the law.

By the time the Gullys were first tried in February 1976, the legislature had acted. On January 1, 1975, Kentucky got a new comprehensive penal code, and, among its provisions was a so-called "mandatory" death penalty statute. ⁴ Under that statute, a death sentence automatically followed conviction for certain crimes tried as "capital" offenses at the election of the prosecution. The new penal code limits its application to offenses committed after 1974. ⁵ The prosecution did not seek to use the mandatory death penalty statute in the Gullys' first trial, and, as we have already noted, they were sentenced to life imprisonment.

In July 1976, the United States Supreme Court ruled unconstitutional mandatory death penalty statutes of the sort contained in the new Kentucky Penal Code. ⁶ By amendment to the new criminal code, the Kentucky legislature, in response, changed the law again, this time enacting a so-called "controlled discretion" death penalty statute. ⁷ Under this law, the sentencing authority is Required to consider the death penalty as one of a range of sentencing options for defendants convicted of crimes designated elsewhere in the code as "capital" offenses. The sentencing decision is made after the trial on the issue of criminal liability at a second "bifurcated" hearing at which the sentencing authority must take evidence concerning the presence or absence of any of a number of mitigating and aggravating factors listed in the statute as well as any other circumstances in mitigation or aggravation of the offense. The sentencing authority may not impose the death penalty except upon a finding, "beyond a reasonable doubt," of at least one of the statutorily prescribed aggravating factors. Under no circumstances is a death sentence required.

After the convictions obtained at the first trial were reversed on appeal, the State made immediate plans to retry the Gullys for the same crimes. Despite the express provision of the new code limiting its application to crimes committed after 1974, and despite the fact that the amended death penalty provision was not adopted until 1976, and in contrast to State's conduct of the first trial, when it did not seek to use the mandatory death penalty statute then on the books, the State this time sought from the trial court a ruling that the sentencing procedures of the new penal code, including the new "controlled discretion" death penalty law, were applicable to the pending prosecution. The trial court obliged, and it is this ruling that the Gullys have challenged in their habeas corpus petition.

Petitioners raise several objections to the trial court's ruling, any one of which, they claim, is sufficient to bar their retrial under the new death penalty statute. They argue that application of the new statute to them will deny them due process and violate the constitutional prohibition against ex post facto laws because, at the time they allegedly committed the crimes, the death penalty could not be imposed in Kentucky and they, therefore, could not have been on notice that their criminal acts were punishable by death. Alternatively, they contend that the State decided to use the new death penalty statute at their retrial in order to punish them for having prosecuted a successful appeal of their earlier convictions and life sentences and that such a vindictively motivated prosecution will deny them due process. They further charge that application of the new death penalty statute to them will deny them equal protection of the laws.

Petitioners have also argued that their retrial subject to the death penalty will violate the double jeopardy clause of the fifth amendment, enforceable against the State under the fourteenth. And, in a claim unrelated to the others, petitioner Terry Lee Gully argues that the State is barred by double jeopardy from retrying him because his earlier convictions were reversed "as a result of prosecutorial misconduct designed to create a mistrial or reversible error."

II.

The first question to be resolved is whether petitioners are entitled to have any of these claims considered on federal habeas corpus In advance of the retrial. The District Court answered in the negative because "all of the issues and questions presented may be raised in state court and to grant the Petition at this time would be premature." We agree for the most part but think petitioners are entitled to a federal forum for their double jeopardy claims.

Although it has long been established that there is Power in the federal courts to consider on habeas corpus the merits of a constitutional defense to a state criminal charge in advance of a final judgment of conviction, Ex parte Royall, 117 U.S. 241, 253, 6 S.Ct. 734, 29 L.Ed. 868 (1886), considerations of federalism counsel strongly against exercising the power except in the most extraordinary circumstances. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-91, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Before we may intervene, we must find under the federal habeas corpus statute that the applicant has exhausted state remedies, or that there is "an absence of available State corrective process," or "circumstances rendering such process ineffective." 28 U.S.C. § 2254(b) (1976).

Our only disagreement with the District Court is that we think double jeopardy claims, by their very nature, do involve exceptional circumstances warranting an exercise of the power despite the attendant risk of interfering with pending state proceedings. One who sets up a defense under the double jeopardy clause to a pending criminal prosecution is asserting a constitutional immunity from having to undergo "the risk or hazard of trial and conviction" and does not seek merely to avoid "the ultimate legal consequences of (an adverse) verdict." Price v. Georgia, 398 U.S. 323, 331, 90 S.Ct. 1757, 1762, 26 L.Ed.2d 300 (1970). The "prohibition is not against being twice punished, but against being twice put in jeopardy." Ball v. United States, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 11 L.Ed. 300 (1896). "There is a wide difference between a verdict given and the jeopardy of a verdict," because the "hazard, peril, danger, jeopardy of a verdict cannot mean a verdict given." Commonwealth v. Cook, 6 S&R 577, 596 (Pa.1822). Thus, "if a criminal defendant is to avoid Exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge...