Mullreed v. Kropp

Decision Date04 May 1970
Docket NumberNo. 19650.,19650.
Citation425 F.2d 1095
PartiesJoseph E. MULLREED, Petitioner-Appellant, v. George A. KROPP, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

David W. Jones (court appointed) Cincinnati, Ohio, for petitioner-appellant.

Stewart H. Freeman, Lansing, Mich., for respondent-appellee; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Atty. Gen., Lansing, Mich., on brief.

Before PHILLIPS, Chief Judge, and PECK and BROOKS, Circuit Judges.

PHILLIPS, Chief Judge.

This is a habeas corpus case in which petitioner appeals the denial of the writ.

The essential facts are not disputed. In June 1954 Joseph E. Mullreed and a friend, Leland Passow, were drinking in a tavern near Grass Lake, Michigan. After several drinks Mullreed and a female bar attendant played a game of shuffleboard. Sometime after that it is alleged that the attendant was struck with a chair and that Mullreed took $40 from the cash register. About a week later Mullreed and Passow were arraigned in the Jackson County Circuit Court of Michigan on an information charging them with "robbery armed," which in Michigan carries a sentence up to and including life imprisonment. At the arraignment both Mullreed and Passow informed the Court that they did not have legal counsel and requested appointed counsel. The Court inquired into their financial circumstances and took the request under consideration. Thereafter both men stood mute without counsel and the Court entered pleas of not guilty for them.

A week later both of the defendants had an "interview" with the State Prosecutor, at which time the Prosecutor informed them that he had some doubts as to whether a chair would constitute a dangerous weapon for purposes of the armed robbery statute. For that reason he said he was adding a second count to the information, a lesser offense, "robbery unarmed." After explaining this charge and the penalties, the Prosecutor told both defendants that there would be no jury in the Jackson County Circuit Court for three months; that unless defendants could furnish bail they would have to remain in jail until then and would be prosecuted on the "robbery armed" count with the second count added.

Both men agreed to plead guilty to "robbery unarmed." When taken before the Court Passow renounced his decision. He later obtained counsel, went before a different judge and received a sixty day sentence. Mullreed, however, stuck by his agreement and pleaded guilty. The plea was accepted by the Court, and he was sentenced to serve ten to fifteen years in the state prison.

To recapitulate: The information consisted of two counts: count one, robbery armed; and count two, robbery unarmed. As to the first count Mullreed stood mute and demanded counsel. The Court entered a not guilty plea on this count and said it would consider the demand for counsel. As to the second count, which was a lesser offense, Mullreed entered a plea of guilty. At the time Mullreed was convicted of unarmed robbery on his plea of guilty to that offense, his plea of not guilty to armed robbery remained in effect and his demand for counsel remained unsatisfied. The plea of not guilty to armed robbery had put the first count at issue prior to his conviction on the second count.

Mullreed filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Michigan. He urged that he was deprived of his liberty without due process of law because he had been sentenced in the State court after having been denied the assistance of counsel. In Mullreed v. Bannan, 137 F.Supp. 533 (E.D.Mich.), the late District Judge Frank A. Picard found that Mullreed was entitled to his freedom on the grounds urged and granted his petition. Pursuant to the writ Mullreed was released from prison on January 20, 1956. Immediately he was arrested by the State police and on January 31 was bound over to the Jackson County Circuit Court for arraignment on the charge of "robbery armed," that is, the first count in the original information. He was tried on March 7, 1956, before a jury which returned a verdict of guilty. This time Mullreed was sentenced to serve fifteen to thirty years in the State prison.

From the date of his conviction to the filing of the petition involved in the present case, Mullreed has waged a continuous battle in the State courts, often without legal assistance, and with no success. He has made the following efforts: a motion for a new trial, an amended motion for a new trial, a petition for writ of habeas corpus, which was denied by the Supreme Court of Michigan, a motion to vacate judgment filed in the State trial court, and an application for leave to file a delayed appeal. One of the grounds for delayed appeal was a claim of double jeopardy. The Supreme Court of Michigan denied the application for delayed appeal.

Upon the failure of his State court efforts, Mullreed on June 14, 1967, turned to the federal courts and, acting in propria persona, filed the petition in the instant proceeding. He alleged that his conviction for armed robbery was a violation of the double jeopardy clause of the Fifth Amendment of the Constitution of the United States. The District Court held that Mullreed was never in jeopardy on the armed robbery charge nor was he acquitted of it by the court's acceptance of his plea of guilty to the unarmed robbery charge, and for that reason denied his petition. Petitioner appeals.

We reverse.

The issue raised by this appeal is whether, consistent with the Constitutional prohibition of double jeopardy, a defendant who originally is charged in a two count information, and who pleads guilty to the lesser count, may be retried and sentenced on the greater count, after he has successfully overturned his conviction on the count to which he pleaded guilty.


The Fifth Amendment's prohibition of double jeopardy applies to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. And "the same constitutional standards apply against both the State and Federal Governments." Benton v. Maryland, supra at 795, 89 S.Ct. at 2063. Hence decisions interpreting and applying the standard are applicable to the states, though they were rendered prior to Ben- ton. See Malloy v. Hogan, 378 U.S. 1 at 11, 84 S.Ct. 148, 12 L.Ed.2d 653.

Since this case was "final"1 before the Benton rule, was announced, we face a threshold inquiry as to whether Benton applies retroactively to this case. We think it does.

The Supreme Court said in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601: "The Constitution neither prohibits nor requires retrospective effect." "Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective." Id. at 628, 85 S.Ct. at 1737. The Court "must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Id. at 629, 85 S.Ct. at 1738. Applying these criteria to the instant case we look to the history and purpose of the Benton rule; any reliance placed by the States upon the overruled case of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; and the effect on the administration of justice of a retrospective application of Benton. Johnson v. New Jersey, 384 U.S. 719, 727, 86 S.Ct. 1772, 16 L. Ed.2d 882; Tehan v. United States ex rel. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 15 L.Ed.2d 453; Linkletter v. Walker, supra, 381 U.S. at 636, 85 S.Ct. 1731.2

The history and purpose of the rule against double jeopardy was stated in Benton, supra, 395 U.S. 784 at 795-796, 89 S.Ct. at 2063 as follows:

"Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation\'s independence. See Bartkus v. Illinois, 359 U.S. 121, 151-155, 79 S.Ct. 676, 697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. `The plea of autrefoits acquit, or a former acquittal,\' he wrote, `is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.\' Today, every State incorporates some form of the prohibition in its constitution or common law. As this Court put it in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L. Ed.2d 199 (1957), `the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.\' This underlying notion has from the very beginning been part of our constitutional tradition." (Footnotes omitted.)

Every state has some form of the prohibition against double jeopardy.3 It can hardly be urged that great reliance was placed on the inapplicability of the Federal prohibition to the States, as announced by Palko. Indeed that decision rendered State protections the more important. In view of these facts we think an application of Benton here does not pose the problems for the administration of justice that has concerned the Supreme Court in its decisions which deny retroactive effect to some of the rules announced. By way of emphasis we note that in cases in which a rule has been permitted retroactive effect, a primary concern has been...

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