Pettyjohn v. Evatt

• Decision Date: 24 January 1974
• Docket Number: Civ. A. No. 6847.
• Citation: 369 F. Supp. 865
• Parties: Samuel PETTYJOHN v. H. Q. EVATT, Sheriff, Hamilton County, Tennessee.
• Court: U.S. District Court — Eastern District of Tennessee

369 F. Supp. 865

Samuel PETTYJOHN v. H. Q. EVATT, Sheriff, Hamilton County, Tennessee.

Civ. A. No. 6847.

United States District Court, E. D. Tennessee, S. D.

January 24, 1974.

COPYRIGHT MATERIAL OMITTED

Brown & Brown, Chattanooga, Tenn. (Gene R. Griffin), for petitioner.

Edward E. Davis, Dist. Atty. Gen., Chattanooga, Tenn., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondent.

OPINION

FRANK W. WILSON, Chief Judge.

This is a proceeding upon a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 in which the petitioner seeks to set aside his convictions and sentences in two cases, each entitled "State of Tennessee v. Samuel Pettyjohn," being Docket Nos. 114,458 and 114,491 in the Criminal Court for Hamilton County, Tennessee. In Case No. 114,458, the petitioner was convicted of assault with intent to commit second degree murder and sentenced to not less than one nor more than two years. In Case No. 114,491, the petitioner was convicted of carrying a pistol and sentenced to 11 months and 29 days and fined $50.00. The petitioner's sole contention is that he had been previously tried, convicted and fined for the same offenses in the municipal court for the City of Chattanooga, Tennessee, and that his state court convictions were accordingly illegal as having been obtained in violation of his right under the Fifth and Fourteenth Amendments of the United States Constitution not to twice be placed in jeopardy for the same offenses. This issue was presented in a post-conviction proceeding in the state courts and was ultimately found to be without merit by the Tennessee Supreme Court. The exhaustion of state court remedies is accordingly conceded.

The case is presently before this Court upon the petition for habeas corpus, the answer of the respondent, certain portions of the technical records in the state and municipal court proceedings and certain unpublished opinions of the Tennessee Court of Criminal Appeals and the Tennessee Supreme Court. The parties have submitted the case for decision upon this record and it appears that the record is adequate for a decision of the issues presented without further evidentiary proceedings.

The following facts appear undisputed in the record now before the Court. Upon February 1, 1968, the petitioner was taken into custody by the Chattanooga, Tennessee police upon four warrants of arrest. Two of the warrants charged the petitioner with carrying a pistol, one alleging violation of a municipal ordinance and the other alleging a violation of the state law. The other two warrants charged the petitioner with having committed an assault, one alleging an assault and battery in violation of a municipal ordinance and the other alleging an assault with a pistol in violation of state law. All four charges arose out of the same episode, an altercation that occurred between the petitioner and one Sam Stultz upon January 30, 1968. Upon February 5, 1968, the City Judge of Chattanooga heard proof in all four cases. He found the petitioner guilty upon the two municipal charges and imposed a fine of $50.00 in each case. As committing magistrate, he bound the petitioner over to the grand jury upon the two state charges. The petitioner thereupon took an appeal from the two municipal court convictions. Under Tennessee law such an appeal had the effect of setting aside the municipal court conviction and granting the petitioner a trial de novo in the Circuit Court of the state. See T.C.A. § 27-502. See also Memphis v. Schade, 59 Tenn. 579 (1873); O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908); Deming v. Nichols, 135 Tenn. 295, 186 S.W. 113 (1916). While the appeals from the two municipal court convictions were pending and prior to any de novo hearing thereon, the petitioner was indicted, tried and convicted upon the two state charges, those convictions having occurred in a jury trial held upon May 21, 1969. A sentence of not less than one year nor more than two years was imposed upon the assault conviction and a sentence of 11 months and 29 days and a fine of $50.00 was imposed upon the pistol carrying conviction.

Thereafter, upon July 31, 1969, a trial de novo was held in the state circuit court upon the petitioner's appeal from his two municipal court convictions, with the result that the petitioner was again found guilty upon these charges and fined $50.00 upon each charge. These fines were eventually paid.

In the meanwhile, execution of the two sentences of imprisonment was stayed while the petitioner sought appellate and post-conviction relief in the state courts. The record does not reflect whether double jeopardy or due process was made an issue by the petitioner in his direct appeal. The record does reflect that his convictions were affirmed upon appeal. It is clear, however, that following the decisions of the United States Supreme Court in the cases of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), the petitioner filed a post-conviction petition in the state court asserting the double jeopardy issue and the matter was eventually taken to the Tennessee Supreme Court. Although the petitioner's double jeopardy contention was initially sustained by the Tennessee Supreme Court, upon reconsideration that Court reversed itself and denied the contention, concluding that double jeopardy would not lie since the petitioner's convictions upon state charges occurred while his municipal convictions were on appeal and prior to his ultimate conviction upon those charges after a de novo hearing. The substance of the Tennessee Supreme Court decision on the double jeopardy issue may be found in the following excerpts from their opinion upon rehearing:

"The general rule is that a defendant, who on his own motion has a judgment against him set aside, cannot plead double jeopardy to bar a subsequent conviction on the same or similar charges. As stated in 21 Am.Jur. 2d, "Criminal Law," § 209, `A defendant waives his constitutional protection against double jeopardy when a verdict or judgment against him is set aside at his own instance either on motion in the lower court or on a successful appeal.' See also 22 C.J.S., "Criminal Law" §§ 271 and 272. This general rule is reflected in our Tennessee cases, e. g., Davis v. State, 199 Tenn. 51, 282 S.W.2d 357 (1955) and State ex rel Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244 (1966).

"The crux of this case is that the granting of a trial de novo effectively `sets aside' the original conviction, leaving nothing upon which the defendant can base a plea of former jeopardy . . .

"The petitioner in this case voluntarily released himself from the jeopardy that arose as a result of his first trial in the city court when he sought a new trial on the merits in the criminal court. There, proof was heard as though it were the first trial on the municipal warrants. Now petitioner seeks to benefit from both the jeopardy and the annulment of the first conviction. The municipal convictions, from which Pettyjohn had appealed, did not constitute jeopardy barring the subsequent state conviction."

At issue is whether the above rationale and conclusions of the Tennessee Supreme Court are in harmony or in conflict with controlling decisions of the United States Supreme Court in interpreting the Double Jeopardy Clause of the Federal Constitution. Also at issue is a contention not presented to or dealt with by the Tennessee Supreme Court, and that is the respondent's further contention that no claim of double jeopardy would lie since the municipal court was a committing magistrate only with reference to the state charges and was without jurisdiction to try the greater offenses stated in those charges. The respondent relies upon the case of Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1911) in support of this contention.

As a point of departure for discussing the federal law of double jeopardy as it applies to the facts and contentions in this case, it should be noted that at the time the petitioner was convicted in the state court (1969), the double jeopardy provision of the Fifth Amendment to the Federal Constitution was interpreted by the United States Supreme Court as not being applicable to the states. See Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). See the discussion in this regard in the case of Robinson v. Henderson, 268 F.Supp. 349 (E.D.Tenn.1967). At that time the Tennessee courts, in interpreting the state constitution, adhered to the rule that a conviction in a municipal court of an offense against the municipality was not a bar to a subsequent prosecution for violation of state law growing out of the same facts. Mullins v. State, 214 Tenn. 366, 380 S.W.2d 201 (1963).

In 1969, in the case of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, the United States Supreme Court overruled the Palko case, supra, and concluded that the Fifth Amendment was made applicable to the states through the Due Process Clause of the Fourteenth Amendment. In 1970, in the case of Waller v. Florida, 397 U. S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, the Court held that state and municipal convictions derived from the same sovereignty and were therefore indistinguishable for double jeopardy purposes. In 1973, in the case of Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29, the double jeopardy rule announced in Waller, supra, was held to be fully retroactive in its application. The effect of these three decisions was to alter retroactively the double jeopardy rule followed in Tennessee prior to 1970, and in fact followed until the 1973 decision in Robinson v. Neil, supra. These matters were properly recognized by the Tennessee Supreme Court in its opinion denying post-conviction relief to the petitioner. Rather, as previously noted, relief was denied in that court upon the...