Miracle v. Estelle, 78-2110

• Decision Date: 10 April 1979
• Docket Number: No. 78-2110,78-2110
• Citation: 592 F.2d 1269
• Parties: Billy Wayne MIRACLE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1269

592 F.2d 1269

Billy Wayne MIRACLE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections Respondent-Appellee.

No. 78-2110.

United States Court of Appeals Fifth Circuit.

April 10, 1979.

Ken G. Anderson, Staff Counsel for Inmates, Texas Dept. of Corr., Frank Blazek, Michael Tobin, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Joe B. Dibrell, David M. Kendall, Jr., Asst. Attys. Gen., Austin, Tex., W. Barton Boling, Asst. Attys. Gen., El Paso, Tex., Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before GEWIN, GEE and RUBIN, Circuit Judges.

GEWIN, Circuit Judge:

Appellant Billy Wayne Miracle was convicted by a jury of aggravated robbery with two convictions alleged for enhancement and given the mandatory sentence of life imprisonment. Miracle exhausted state remedies and pursuant to 28 U.S.C. § 2254, filed a habeas corpus application with the federal district court. Acting upon the United States magistrate's report and recommendation, the district court denied relief. On this appeal appellant claims the trial resulting in his conviction was the product of prosecutorial vindictiveness in violation of due process rights recognized in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). ¹ Because we believe Miracle has made a sufficient claim of prosecutorial vindictiveness under Blackledge and this court's own decisions, we vacate the judgment of the district court and remand.

On May 24, 1974, Miracle was indicted in Cause 16,202 in the 108th District Court, Potter County, Texas for the second degree felony of robbery with one prior felony conviction charged for enhancement. ² The indictment alleged that appellant perpetrated the offense upon Hal Brown on September 1, 1972. Under Texas law the charge carried a potential punishment of 5 to 99 years. ³ On October 16, 1974, a second grand jury impaneled in Potter County returned to the 47th District Court a true bill indicting Miracle for aggravated robbery, a first degree felony, with two felony convictions alleged for enhancement. ⁴ This indictment styled 16,365-A, was based on the same September 1, 1972 robbery of Hal Brown. Because of the two enhancement convictions, the charge in 16,365-A carried an automatic punishment of life imprisonment.

After both indictments were returned, the prosecutor chose to proceed to trial in the 47th District Court on Cause 16,202, the robbery charge carrying a potential 5-99 year punishment. In a bifurcated trial the jury found Miracle guilty, and at the sentencing stage determined that he previously had been convicted of the enhancement felony and sentenced him to 99 years imprisonment. Shortly thereafter appellant filed a motion for a new trial on grounds of jury misconduct. At a hearing on the motion, the trial judge found that the jury had discussed during deliberations appellant's potential status under the state's parole laws. The court therefore granted Miracle a new trial.

The state prosecutor who tried Miracle elected to retry him on 16,365-A, the aggravated robbery-two enhancement felony charge. At the conclusion of appellant's trial on 16,365-A, the jury found him guilty and subsequently concluded that he had been convicted twice of felony offenses. Accordingly, the trial judge sentenced Miracle to life imprisonment as required by law. ⁵

This court's appraisal of appellant's claim of prosecutorial vindictiveness must adhere to the principles established by the Supreme Court in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) and developed by this Circuit in Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977) and Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978). Blackledge and its progeny make clear that the substantial discretion traditionally accorded state prosecutors in bringing defendants to trial on criminal charges is subject to the due process guarantees of the Fourteenth Amendment. Moreover, the decisions hold that when an accused is convicted and successfully exercises his statutory or constitutional rights to obtain direct or collateral relief from the conviction, a state may not marshal more numerous or severe charges against the defendant in order to punish him for availing himself of appropriate remedies or discourage future defendants from a similar exercise of their rights. ⁶ Blackledge, supra 417 U.S. at 27-28, 94 S.Ct. 2098; Jackson, supra at 142-43; Hardwick, supra at 301. As the Supreme Court stated in Blackledge :

A person convicted of an offense is entitled to pursue his statutory right . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. (citation omitted).

417 U.S. at 28, 94 S.Ct. at 2102, 2103.

The advancement of a prosecutorial vindictiveness claim brings into conflict two antithetical interests: (1) the due process right of the defendant to be free of apprehension that the state might subject him to an increased potential punishment if he exercises his right to make a direct or collateral attack on his conviction, and (2) the prosecutor's broad discretion to control the decision to prosecute. Jackson, supra at 143; Hardwick,supra at 301. Because of the societal importance of both policies, the actual showing an accused must make to establish a due process violation depends on a careful balancing of the defendant's interest against that of the state. Jackson, supra at 145. A court must "weigh the extent to which allowing the second (prosecution of the defendant) will chill the exercise of the defendants' appeal rights against the extent to which forbidding the second (prosecution) will infringe on the exercise of the prosecutor's independent discretion." 585 F.2d at 145.

Employing this calculus in Blackledge, the Supreme Court found from the circumstances that the interest of the State was completely overborne by the defendant's right to be free of the fear of vindictiveness. The Court therefore held that a due process violation was established by the accused's showing that his second prosecution posed a "reasonable likelihood of vindictiveness", creating an apprehension in future defendants that the state would retaliate against their exercise of constitutional or statutory rights. ⁷ No actual vindictiveness or retaliation motive was required to be shown.

Blackledge involved a defendant convicted in a state district court of assault with a deadly weapon, a misdemeanor, and sentenced to six months. After his conviction, the defendant exercised his statutory right to obtain a trial de novo in state Superior Court. Prior to this trial, the prosecution secured a superseding indictment charging the accused with the felony of assault with intent to kill and inflict serious bodily injury. The indictment covered the same conduct for which the defendant was convicted in the district court. After pleading guilty to the new indictment, he was sentenced to five to seven months imprisonment.

The Supreme Court recognized that the felony indictment was a more severe charge because of the potential increase in punishment. 417 U.S. at 27-28, 94 S.Ct. 2098. As a result other defendants might perceive the charge as a retaliatory measure for the exercise of the right to appeal. At the same time, the indictment did not represent an initial decision by the prosecutor to bring charges for separate criminal acts. It was merely a substitution of a more severe charge for the same conduct, a "harsher (variation) of the same original decision to prosecute." Hardwick, supra at 302. There being no other crimes, the prosecutorial interest in discretion was slight, and under these circumstances, the Supreme Court held the defendant's showing of a reasonable apprehension of vindictiveness sufficed to render the indictment constitutionally deficient. ⁸

In Hardwick and Jackson, however, this court concluded from the factual settings of the cases that the prosecutorial interest in broad discretion outweighed the countervailing due process interest. Accordingly, we held that a mere claim of apprehension of vindictiveness, without a determination of actual vindictiveness, established only prima facie proof of a due process violation. Jackson, supra at 148-49; Hardwick, supra at 302-03. The burden was shifted to the state to prove that the prosecutor's motive was not vindictive. Id.

Unlike Blackledge, Hardwick involved the reindictment and retrial of an accused on criminal conduct not alleged in the original indictment. The defendant was initially indicted, tried and convicted of bank robbery and assault of a policeman. After a successful appeal of the conviction, but before his second trial, the state obtained another indictment adding two distinct criminal acts, robbery of a bank customer and a second assault. The Hardwick court held that the state's interest in having the freedom to initiate prosecution for these distinct offenses was superior to the defendant's interest. A fortiori, the court concluded that the prosecutor was entitled to the opportunity to explain the second prosecution, which on its face appeared vindictive.

Similarly, in Jackson the accused was also retried for a different offense, aggravated burglary, after the reversal of his conviction for aggravated kidnapping. Moreover, the aggravated burglary charge was a lesser offense. While aggravated kidnapping carried a maximum sentence of life imprisonment, the maximum sentence for aggravated burglary was 30 years. ⁹ The prosecution of the accused on a less serious charge minimized the likelihood of vindictiveness. Consequently, the defendant's interest was significantly outweighed by the state's interest in the liberty to retry defendant for distinct...