Sundel v. JUSTICES OF SUPERIOR COURT

• Decision Date: 23 August 1983
• Docket Number: Civ. A. No. 83-0383S.
• Citation: 570 F. Supp. 1131
• Parties: William A. SUNDEL v. JUSTICES OF the SUPERIOR COURT, State of Rhode Island: Attorney General of the State of Rhode Island.
• Court: U.S. District Court — District of Rhode Island

570 F. Supp. 1131

William A. SUNDEL v. JUSTICES OF the SUPERIOR COURT, State of Rhode Island: Attorney General of the State of Rhode Island.

Civ. A. No. 83-0383S.

United States District Court, D. Rhode Island.

August 23, 1983.

Temkin & Miller Ltd. by James H. Leavey, Providence, R.I., Edward M. Chikofsky, New York City, for plaintiff.

Dennis J. Roberts, II, Atty. Gen., Kenneth P. Madden, Asst. Atty. Gen., Providence, R.I., for defendant.

OPINION

SELYA, District Judge.

This petition for a writ of habeas corpus is brought against the Justices of the Superior Court for the State of Rhode Island and the state's Attorney General. The petitioner, William A. Sundel, seeks to prevent the state from proceeding further with a pending criminal prosecution. Jurisdiction is bottomed on 28 U.S.C. § 2254.

Sundel and several codefendants (including one Frank W. Nelson) were indicted in October of 1981 in Kent County Superior Court for possession of marijuana with intent to deliver the same and for conspiracy to commit that substantive offense. Following indictment, John A. O'Neill, Jr., a member of the Rhode Island bar, entered his appearance for both Sundel and Nelson. Subsequent to that entry of appearance, Sundel retained a member of the New York bar, David Breitbart. Since Breitbart was not admitted to practice in Rhode Island, he sought leave to appear as petitioner's trial counsel pro hac vice. His motion (hereinafter the "Motion"), supported by O'Neill's agreement to associate with Breitbart and to continue to serve as Sundel's local counsel, was granted by the superior court on January 4, 1982. Thus, both prior to commencement of trial and during the ensuing trial itself, petitioner enjoyed dual representation by Breitbart and O'Neill; his defense, however, was controlled by Breitbart as lead counsel.

After characteristic (and largely unremarkable) preliminary skirmishing, a jury was empanelled on March 31, 1982. By that time, only Sundel and Nelson remained before the court. The taking of testimony began on April 1st. Although it is unclear from the record when the trial judge began to question Breitbart's ability to provide efficacious assistance of counsel, the notion was firmly implanted in the judge's mind by the time of adjournment on the first day of actual trial.¹ Following adjournment on that date, the judge conducted an in-chambers conference with all counsel present. The precise details of that chambers conference are obscure (as the court reporter was not present), but one thing is crystal clear: the judge broached the subject of Breitbart's appreciation and comprehension of Rhode Island procedure and rules of evidence and raised, sua sponte, the question of Breitbart's capacity to render effective assistance to Sundel. R. of May 21, 1982 hearing at 2-3. It also appears reasonably certain that the judge advised Breitbart during the chambers conference that his right to appear as trial counsel in the case was at risk. Id.; 2 R. at 230-31.

When court resumed on April 2, 1982, the trial justice revoked Breitbart's permission to appear as counsel. He then gave petitioner three alternatives, viz., (i) proceeding pro se, or (ii) proceeding with O'Neill as his counsel, or (iii) seeking new counsel. Id. at 236. In connection with the last option, the trial justice had emphatically forewarned the petitioner that he would, if this alternative proved to be Sundel's preference, "take this case from the jury". Id. at 229. O'Neill then stated his view that there would be a conflict of interest if he acted for both Sundel and Nelson. Id. at 236-37. Sundel thereupon sought the opportunity to engage a new trial attorney. Id. at 237. The judge acceded to this request and concomitantly declared a mistrial.²

Subsequently, Sundel moved to dismiss the indictment on the ground that a retrial would constitute a violation of the petitioner's right not to be placed twice in jeopardy. The trial court denied the motion. On Sundel's application, the Rhode Island Supreme Court stayed all proceedings, and granted a petition for writ of certiorari on July 9, 1982. Following submission of briefs and oral arguments, that court rejected the double jeopardy contention and remanded the case for trial in the superior court. State v. Sundel, 460 A.2d 939, 944 (R.I.1983).

With a new trial imminent, the petitioner swiftly explored two further avenues of relief. On June 7, 1983, Sundel requested that the state supreme court reconsider the matter; and, on June 10, 1983, he filed an application for a writ of habeas corpus here, and requested that this court enjoin the state from retrying him until the state supreme court had acted on his prayer for rehearing. This court, in an ora sponte bench decision, denied the request for a restraining order both because the petitioner had not exhausted his pursuit of a stay of prosecution from the state supreme court and because it was chary of hasty federal interference in ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 668 (1971). Shortly thereafter (and before the criminal case was again reached for trial in the superior court), the state supreme court denied Sundel's motion for rehearing. He now presses his application in this court for the writ of habeas corpus, retrial of the state court prosecution being imminent.

The petitioner contends that his retrial will violate the Double Jeopardy Clause of the U.S. Constitution, and also argues that Breitbart's disqualification by the trial court violated his Sixth Amendment right to counsel. The state opposes the petition on grounds that a retrial will not implicate Sundel's rights under the Double Jeopardy Clause inasmuch as the petitioner, despite characterizations to the contrary contained in Sundel's application, voluntarily moved for a mistrial; and that an aborted trial, so induced, does not bar the occurrence of a second trial. Further, the state asserts that the revocation of Breitbart's permission to act for Sundel was fully justified and in no way contravenes petitioner's Sixth Amendment prerogatives.

EXHAUSTION OF REMEDIES

Before reaching these issues, however, the court must deal with a threshold contention advanced by the respondents. The state seeks dismissal of the petition on procedural grounds, asseverating that it contains both exhausted and unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); and that this court is thus debarred from entertaining the application by reason of 28 U.S.C. §§ 2254(b) and (c). In particular, the state contends that the Rhode Island courts have not passed upon Sundel's Sixth Amendment claim; and that the instant case is thus brought within the parameters of Rose v. Lundy, supra. This court disagrees. Exhaustion of state remedies does not require that the state judiciary decide each issue presented but only that the issues presented in the federal habeas petition be presented to, and addressed fully in, the state courts. Smith v. Digmon, 434 U.S. 332, 334, 98 S.Ct. 597, 599, 54 L.Ed.2d 582 (1978); Williams v. Holbrook, 691 F.2d 3, 8 (1st Cir.1982); Williams v. Moran, C.A. No. 82-0347P, slip op. at 4 (D.R.I. April 8, 1983). The doctrine demands only that the state courts be accorded a meaningful opportunity to confront the federal constitutional claims of a habeas petitioner before the district court asserts jurisdiction; the decisive question is whether or not the "substance" of the asserted claims have been squarely tendered to the state judiciary. Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Eaton v. Holbrook, 671 F.2d 670, 671 (1st Cir.1982).

Surely, a petitioner cannot spring neoteric factual allegations or previously-undeveloped legal theories upon the district court, see Anderson v. Harless, 103 S.Ct. at 277, but that is not the case at bar. Here, notwithstanding that the opinion of the state supreme court is silent as to the Sixth Amendment issue, Sundel fulsomely briefed this argument and presented it four-square in the certiorari proceedings. The gravamen of the Sixth Amendment contention here is identical to that eschewed by the state supreme court. Nothing about Sundel's present asseveration can fairly be said to "transform his claim or cast it in a significantly different light." Domaingue v. Butterworth, 641 F.2d 8, 12 (1st Cir.1981). Rose v. Lundy, supra, is but a red herring in such circumstances, for Sundel indeed has exhausted his state remedies within the meaning of 28 U.S.C. § 2254(b).

DOUBLE JEOPARDY

The Fifth Amendment to the Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This admonition has been interpreted in certain circumstances to bar the retrial of individuals when the first trial has ended in a mistrial. E.g., Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1073, 35 L.Ed.2d 425 (1973). Unlike an acquittal or a conviction (where the bar is automatic, see Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830, a mistrial does not however, ipso facto prevent the state from retrying the accused. If the defendant requests that the trial be halted, or consents to a motion to pass, then no constitutional barrier exists to a retrial unless the defendant can show that the state contrived to provoke the motion. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982). On the other hand, a mistrial declared sua sponte over the objection of the defendant will ordinarily foreclose retrial unless there was manifest necessity for the judge's action. Id. at 672, 102 S.Ct. at 2087-88; Brady v. Samaha, 667 F.2d 224, 228 (1st Cir. 1981).

Applying these principles to the case at hand, this court first must ascertain whether the petitioner, after Breitbart's removal,...