Lydon v. Justices of Boston Municipal Court, Civ. A. No. 81-2311-G.

• Decision Date: 13 April 1982
• Docket Number: Civ. A. No. 81-2311-G.
• Citation: 536 F. Supp. 647
• Court: U.S. District Court — District of Massachusetts
• Parties: Michael LYDON, Plaintiff, v. The JUSTICES OF the BOSTON MUNICIPAL COURT, et al., Defendants.

536 F. Supp. 647

Michael LYDON, Plaintiff, v. The JUSTICES OF the BOSTON MUNICIPAL COURT, et al., Defendants.

Civ. A. No. 81-2311-G.

United States District Court, D. Massachusetts.

April 13, 1982.

David Rossman, Boston, Mass., for plaintiff.

Barbara A. H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., for defendants.

MEMORANDUM AND ORDER ON HABEAS CORPUS PETITION

GARRITY, District Judge.

Petitioner Michael Lydon seeks a writ of habeas corpus to prevent Massachusetts from trying him a second time pursuant to its two-tier trial system. Petitioner contends that a second trial under the circumstances of his case would violate the double jeopardy clause of the federal constitution. Respondents have moved to dismiss on the grounds that the court lacks jurisdiction, that petitioner has not exhausted state remedies and that the double jeopardy clause does not bar a retrial as provided here.

Massachusetts provides that criminal defendants to certain specified charges who are to be tried in the Boston Municipal Court may elect to waive the right to a jury trial in the first instance and instead proceed to a bench trial. Mass.G.L. c. 218, §§ 26, 26A. If the defendant is dissatisfied with the result of the bench trial, he may then elect to proceed to a jury trial de novo as his sole available remedy. He need not, however, undergo the jury trial but may instead accept the verdict of the judge at the bench trial in the Boston Municipal Court. And, if he is acquitted after the bench trial, the state cannot subject him to the second trial.

Petitioner, who was charged with illegal possession of burglarious implements, elected an initial bench trial and was convicted. His objection that the prosecution had failed to introduce sufficient evidence of the requisite illegal intent, an element of the crime, was denied. He then requested a jury trial de novo, but prior to the jury trial moved to dismiss the charges on the ground that retrial would violate the double jeopardy clause. That motion was denied without a hearing. Lydon then petitioned the single justice session of the Supreme Judicial Court for relief under G.L. c. 211, § 3. The prosecution conceded, and the single justice concluded, that the evidence had in fact been insufficient to convict. The single justice did not, however, report that finding to the full Supreme Judicial Court but instead stayed the trial and reported two other questions to the full court: Whether a defendant would be denied his right not to be placed in double jeopardy if required to go through a jury trial requested by him when the evidence at the bench trial was inadequate to convict and whether, assuming a jury trial would violate the double jeopardy clause, the jury trial judge could reconsider the sufficiency of the evidence if the judge at the bench trial had decided it was sufficient. The S.J.C. held, in a 5-2 decision, that the jury trial under the Massachusetts two-tier system did not violate the double jeopardy clause where the initial conviction was supported by insufficient evidence. All seven justices, however, believed that if such a jury trial would violate the double jeopardy clause, the jury trial judge could reconsider the adequacy of the evidence at the first trial. Lydon subsequently filed his petition in this court for habeas relief. The court received briefs and heard argument on November 4, 1981.

A district court has jurisdiction to consider an application for a writ of habeas corpus on behalf of an individual in custody pursuant to judgment of a state court, only if the individual "is in custody in violation of the Constitution or laws or treaties of the United States", 28 U.S.C. § 2254(a), and has exhausted available state remedies, 28 U.S.C. § 2254(b). Petitioner has satisfied the jurisdictional prerequisites.

The "in custody" requirement of the habeas corpus statute does not condition habeas jurisdiction on actual physical confinement or restraint. Rather, it refers to various restraints on liberty "not shared by the public generally." Jones v. Cunningham, 1963, 371 U.S. 236, 240, 83 S.Ct. 373, 375, 9 L.Ed.2d 285. Thus, an individual who has been released on his own recognizance following conviction is "in custody" within the meaning of the habeas corpus statute. Hensley v. Municipal Court, 1973, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294. Petitioner is such an individual.

Although an individual released on bail or on his own recognizance would be "in custody" he would not necessarily be able to petition for habeas relief. Rather, "he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts." Hensley v. Municipal Court, supra at 353, 93 S.Ct. at 1575.

Defendants here point out, however, that 28 U.S.C. § 2254(a) confers jurisdiction on this court to entertain a habeas petition brought by one in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the United States Constitution" or other federal law. Here, defendants argued, petitioner does not challenge the constitutionality of his custody but only the ability of the court to proceed with his jury trial de novo. We reject this argument.

First, petitioner implicitly claims that "he is in custody in violation of the constitution." Had the court at petitioner's bench trial found petitioner not guilty, there would, of course, be no basis for the imposition of bail or other custody. Here petitioner contends that the evidence at the bench trial was insufficient to convict him so that he should have been found not guilty. A second trial, petitioner contends, would violate his rights under the double jeopardy clause. Yet the prospect of the second trial constitutes the basis for subjecting petitioner to custody. Therefore, petitioner's allegation is, essentially, that the custody violates the Constitution.

Second, it often is appropriate to assume jurisdiction to consider the merits of a pretrial writ of habeas corpus where petitioner claims the pending trial would place him in jeopardy a second time for the same offense. "Because the double jeopardy clause is designed to protect a defendant not only from double conviction but also from being subjected twice to the trial process itself ... a federal court is in the extraordinary position of having no way to protect a defendant's constitutional right other than to consider a petition before trial." Benson v. Superior Court Department of the Trial Court of Massachusetts, 1 Cir. 1981, 663 F.2d 355, 359; cf. Abney v. United States, 1977, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (pretrial order denying motion to dismiss indictment is appealable to preserve defendant's double jeopardy rights). Thus, we conclude that the requirements of 28 U.S.C. § 2254(a) are satisfied where an individual who is in custody pending a trial asserts that the trial would violate the double jeopardy clause.

For habeas jurisdiction to exist, however, the petitioner must also have exhausted available state remedies. 28 U.S.C. § 2254(b). Even where the petition is based on a double jeopardy claim, the petitioner retains some responsibility to exhaust pretrial opportunities to raise that claim before the state court. Benson v. Superior Court Department of Trial Court of Massachusetts, supra at 359. Petitioner here has done so. As recounted above, Lydon (a) moved to dismiss charges against him on the grounds that the evidence at the bench trial was insufficient, (b) petitioned the single justice session of the S.J.C. for relief from the denial of that motion, (c) presented the same claim he presents here to the S.J.C., and (d) petitioned the United States Supreme Court for a writ of certiorari, which was denied. He has exhausted all available state remedies short of submitting to the second trial. Benson requires that he do no more. See also Drayton v. Hayes, 2 Cir. 1979, 589 F.2d 117, 120-21. To hold that the exhaustion requirement means that petitioner must face a second trial before seeking habeas relief might subject him to one of the evils which the double jeopardy clause proscribes — multiple trials — in order to qualify for a determination of whether the trial violated that clause.

Having determined that this court has jurisdiction to consider this habeas petition, we turn now to petitioner's substantive claim that application of the Massachusetts two-tier trial system violated rights the double jeopardy clause protects. The corpus of writing on this case already includes two scholarly opinions by justices of the S.J.C. which clearly present the opposing arguments, Lydon v. Commonwealth, 381 Mass. 356, 409 N.E.2d 745 (1980), cert. denied 1980, 449 U.S. 1065, 101 S.Ct. 792, 66 L.Ed.2d 609, and a lengthy law review discussion. See Comment, "Double Jeopardy Problems Presented by Two Tier Systems," 69 Georgetown Law Journal 1525 (1981). We will not review and discuss again the competing arguments which Justices Wilkins and Liacos have so carefully presented and instead will incorporate their opinions by reference and confine our treatment to stating the considerations which ultimately have influenced our decision.

To begin with, we do not believe that any prior case cited by petitioner or respondent covers the precise situation present here. In Burks v. United States, 1978, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the Supreme Court held that the double jeopardy clause precludes retrial of a defendant whose conviction had been reversed by an appellate court solely for insufficient evidence even if defendant moved for a new trial. Recently, the court held in Hudson v. Louisiana, 1981, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30, that Burks applies also when the trial court judge on a motion for a new trial, rather than a higher court on review, determines that the evidence was insufficient. This case differs from Burks in two ways which Justice...