Martin v. Rose, No. 72-2227.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtPER CURIAM
Citation481 F.2d 658
PartiesGrady Wigfall MARTIN, Plaintiff-Appellant, v. James ROSE, Warden, Defendant-Appellee.
Docket NumberNo. 72-2227.
Decision Date18 July 1973

481 F.2d 658 (1973)

Grady Wigfall MARTIN, Plaintiff-Appellant,
v.
James ROSE, Warden, Defendant-Appellee.

No. 72-2227.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1973.

Decided July 18, 1973.

Certiorari Denied October 9, 1973.


481 F.2d 659

Jerry H. Summers (Court Appointed), Chattanooga, Tenn., on brief, for appellant.

Bart Durham, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., on brief, for appellee.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and MOYNAHAN*, District Judge.

Certiorari Denied October 9, 1973. See 94 S.Ct. 86.

PER CURIAM.

In January 1969, appellant was tried before a jury in the United States District Court for the Eastern District of Tennessee and found not guilty of robbing a Chattanooga bank in 1968, in violation of 18 U.S.C. §§ 2 and 2113(a) & (d). Thereafter in May 1969, the appellant was indicted by the Grand Jury for Hamilton County, Tennessee, for the same robbery in violation of Tennessee Code Annotated (T.C.A.) 39-3902. Appellant filed a motion to dismiss on the basis that he was being placed in double jeopardy. The motion was denied and appellant was found guilty by a jury of the bank robbery. A sentence of 30 years was imposed. The conviction was affirmed by the Tennessee Court of Appeals and a petition for writ of certiorari was denied by the Tennessee Supreme Court. A petition for habeas corpus relief was then filed in the District Court, which denied the petition. The Court, however, granted the certificate of probable cause and this action followed.

There has been no application for relief under the Tennessee post-conviction relief statute, T.C.A. 40-3801 et seq. However, since the only allegation presented in this habeas corpus action has already been presented to the state supreme court upon direct appeal, application for relief under the Tennessee statute is not considered a requisite. Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959); Brown v. Allen, 344 U.S. 433, 73 S.Ct. 397, 97 L.Ed. 469 (1952).

Appellant's sole allegation is that his state prosecution is constitutionally infirm as violative of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States.

The appeal is controlled by Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Similar to this case, Bartkus involved an acquittal on a federal charge of bank robbery which was followed by a state conviction for the same robbery. The Supreme Court found that such successive federal and state prosecutions based upon the same acts do not violate the Double Jeopardy Clause. And in a case announced the same day as Bartkus, the sequence of the prosecutions was reversed and the Supreme Court held that the Fifth Amendment does not bar a federal conviction which follows a state conviction for the same act. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

Appellant urges that Bartkus no longer has continuing validity, particularly in view of recent Supreme Court decisions in such cases as Benton v. Maryland, 395 U.S. 784, 89...

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19 practice notes
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...1976); United States v. Villano, 529 F.2d 1046 (10th Cir. 1976); United States v. Johnson, 516 F.2d 209 (8th Cir. 1975); Martin v. Rose, 481 F.2d 658 (6th Cir. 1973); United States v. Barone, 467 F.2d 247 (2d Cir. 1972); United States v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v.......
  • Com. v. Cepulonis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1978
    ...F.2d 840 (8th Cir. 1977) (prior Federal acquittal of bank robbery); Brown v. United States, 551 F.2d 619 (5th Cir. 1977); Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973) (Federal acquittal followed by State bank robbery conviction); St......
  • Turley v. Wyrick, No. 76-1538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 14, 1977
    ...grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The other circuits are in agreement. Page 842 See, e. g., Martin v. Rose, 481 F.2d 658, 659-60 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973); United States v. Jackson, 470 F.2d 684, 689 (5th Cir. 1972)......
  • State v. Rogers, No. 11322
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 7, 1977
    ...has never reconsidered its position on the "dual sovereignty" doctrine, and in fact has refused opportunities to do so. Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973), and cases cited We must now determine whether our N.M.Const. art. ......
  • Request a trial to view additional results
19 cases
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...1976); United States v. Villano, 529 F.2d 1046 (10th Cir. 1976); United States v. Johnson, 516 F.2d 209 (8th Cir. 1975); Martin v. Rose, 481 F.2d 658 (6th Cir. 1973); United States v. Barone, 467 F.2d 247 (2d Cir. 1972); United States v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v.......
  • Com. v. Cepulonis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1978
    ...F.2d 840 (8th Cir. 1977) (prior Federal acquittal of bank robbery); Brown v. United States, 551 F.2d 619 (5th Cir. 1977); Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973) (Federal acquittal followed by State bank robbery conviction); St......
  • Turley v. Wyrick, No. 76-1538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 14, 1977
    ...grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The other circuits are in agreement. Page 842 See, e. g., Martin v. Rose, 481 F.2d 658, 659-60 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973); United States v. Jackson, 470 F.2d 684, 689 (5th Cir. 1972)......
  • State v. Rogers, No. 11322
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 7, 1977
    ...has never reconsidered its position on the "dual sovereignty" doctrine, and in fact has refused opportunities to do so. Martin v. Rose, 481 F.2d 658 (6th Cir.), cert. denied, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973), and cases cited We must now determine whether our N.M.Const. art. ......
  • Request a trial to view additional results

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