Hayes v. Cowan, No. 76-1409

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore PECK, McCREE and LIVELY; McCREE
Citation547 F.2d 42
Docket NumberNo. 76-1409
Decision Date30 December 1976
PartiesPaul Lewis HAYES, Petitioner-Appellant, v. Henry COWAN, Warden, Respondent-Appellee.

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547 F.2d 42
Paul Lewis HAYES, Petitioner-Appellant,
v.
Henry COWAN, Warden, Respondent-Appellee.
No. 76-1409.
United States Court of Appeals,
Sixth Circuit.
Argued Nov. 18, 1976.
Decided Dec. 30, 1976.

Paul F. Isaacs, Anna H. Isaacs, Jack Emory Farley, J. Vincent Aprile, II, Frankfort, Ky., for petitioner-appellant.

Robert F. Stephens, Atty. Gen. of Kentucky, Victor Fox, Robert L. Chenoweth, Frankfort, Ky., for respondent-appellee.

Before PECK, McCREE and LIVELY, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from the denial of a petition for habeas corpus challenging confinement based on Hayes' conviction of being an habitual criminal under Kentucky's recidivist statute, K.R.S. § 431.190. 1 The district court referred the petition to a magistrate to determine whether leave to proceed in forma pauperis should be granted

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pursuant to 28 U.S.C. § 1915(a). Although the magistrate ordered the petition filed and determined that petitioner's claims were not so frivolous that in forma pauperis leave should not be granted, nevertheless, he concluded that the contentions made were "patently without merit" and recommended that the petition be dismissed. The district court adopted the magistrate's conclusions and, instead of issuing an order to the respondent to show cause as provided in 28 U.S.C. § 2243, it dismissed the petition on the grounds that the mandatory life sentence imposed for the habitual criminal conviction did not constitute cruel and unusual punishment, that petitioner had not been arbitrarily selected for prosecution as an habitual criminal, and that the state prosecutor's decision to seek an habitual criminal indictment when petitioner refused to plead guilty to the charge of forgery in return for a recommendation of a five-year sentence was not an unconstitutional implementation of plea bargaining.

We issued a certificate of probable cause to permit an appeal when the district court, determining that an appeal would be frivolous and not taken in good faith, declined to do so. Because we conclude that petitioner was denied the due process of law by the prosecutor's tactics, we reverse.

The facts which led to petitioner's conviction and incarceration are not disputed. 2 On January 8, 1973, he was indicted for forgery of a check in the amount of $88.30 by a Fayette County, Kentucky grand jury. After arraignment, a pretrial conference was held with the state prosecutor. During this conference, the prosecutor offered to recommend a five-year sentence if Hayes would plead guilty. Petitioner was warned that if he did not plead guilty, he would be charged under the habitual criminal statute. He refused to plead guilty, but insisted on receiving a full trial. The prosecutor thereupon returned to the grand jury, and, on January 29, 1973, obtained a new indictment charging petitioner under the habitual criminal statute based upon the forgery as a third offense. Petitioner was convicted by a jury, and on the instructions of the judge, the mandatory life sentence for a third offense habitual criminal was imposed. 3

We recognize that plea bargaining now plays an important role in our criminal justice system. In Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court approved the practice, and stated that plea bargaining helps to conserve judicial and prosecutorial resources in cases in which there is no substantial issue about the defendant's guilt. The Court has recognized, however, that there are limits to the tactics that a prosecutor may use in bargaining with defendants. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Court has not yet had an opportunity to explore fully these limits, particularly in cases such as this, "where the prosecutor . . . deliberately employ(ed his) charging . . . powers to induce a particular defendant to tender a plea of guilty." Brady, 397 U.S. at 751 n.8, 90 S.Ct. at 1470.

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But it is clear that the legitimate purposes of plea bargaining are not served if a prosecutor...

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25 practice notes
  • U.S. v. Andrews, No. 78-5166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 15, 1980
    ...434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In Bordenkircher the court had under review this court's decision in Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1978), granting a writ of habeas corpus by reason of prosecutorial vindictiveness in obtaining a superseding indictment. The defendan......
  • United States v. Olin Corp., No. CR-78-38.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • February 20, 1979
    ...Cir. 1978); United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977); Midgett v. McClelland, 547 F.2d 1194 (4th Cir. 1977); Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976); United States v. Johnson, 537 F.2d 1170 (4th Cir. 5 The facts in the cases cited by Olin are distinguishable from those in ......
  • United States v. Rosse, No. 2:14–cr–20011–JTF–cgc.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • July 29, 2014
    ...under United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003) ; U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir.1980) and Hayes v. Cowan, 547 F.2d 42 (6th Cir.1976), judgment reversed by Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Defendant contends that th......
  • United States v. Rosse, No. 2:14–cr–20011–JTF–cgc.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • July 29, 2014
    ...under United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003); U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir.1980) and Hayes v. Cowan, 547 F.2d 42 (6th Cir.1976), judgment reversed by Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Defendant contends that the......
  • Request a trial to view additional results
25 cases
  • United States v. Rosse, No. 2:14–cr–20011–JTF–cgc.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • July 29, 2014
    ...under United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003); U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir.1980) and Hayes v. Cowan, 547 F.2d 42 (6th Cir.1976), judgment reversed by Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Defendant contends that the......
  • United States v. Rosse, No. 2:14–cr–20011–JTF–cgc.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • July 29, 2014
    ...under United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003) ; U.S. v. Andrews, 633 F.2d 449, 456 (6th Cir.1980) and Hayes v. Cowan, 547 F.2d 42 (6th Cir.1976), judgment reversed by Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Defendant contends that th......
  • United States v. Olin Corp., No. CR-78-38.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • February 20, 1979
    ...Cir. 1978); United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977); Midgett v. McClelland, 547 F.2d 1194 (4th Cir. 1977); Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976); United States v. Johnson, 537 F.2d 1170 (4th Cir. 5 The facts in the cases cited by Olin are distinguishable from those in ......
  • Jordan v. Epps, No. 10–70030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 25, 2014
    ...follow through on a threat made during plea negotiations. 434 U.S. 357, 363–64, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); cf. Hayes v. Cowan, 547 F.2d 42, 43, 45 (6th Cir.1976) (stating that where the prosecutor warned the defendant during plea negotiations “that if he did not plead guilty, he w......
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