Whitehead v. Richardson
| Decision Date | 16 February 1984 |
| Docket Number | No. S 83-429.,S 83-429. |
| Citation | 580 F. Supp. 44 |
| Parties | Ronald Keith WHITEHEAD, Petitioner, v. William J. RICHARDSON, Sheriff, St. Joseph County, and The Honorable William C. Whitman, Judge, St. Joseph Superior Court, Respondents. |
| Court | U.S. District Court — Northern District of Indiana |
Brennan & Brennan, South Bend, Ind., for petitioner.
Larry L. Ambler, South Bend, Ind., Linley E. Pearson, Atty. Gen. of Indiana, David L. Steiner, Deputy Atty. Gen., Indianapolis, Ind., Michael P. Barnes, Prosecutor, Jane Becker, Deputy Pros. Atty., South Bend, Ind., for respondents.
This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by an inmate of the St. Joseph County Jail in South Bend, Indiana. Jurisdiction is predicated on a federal question under 28 U.S.C. §§ 1331, 2241. It is conceded that petitioner has exhausted his available state court remedies. 28 U.S.C. § 2254(b); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court. Both sides having briefed their respective positions, this matter is now ripe for ruling.
Petitioner, who is represented by counsel in this application for federal habeas relief, is awaiting trial on a pending state murder charge filed February 24, 1981. On February 2, 1982, jury selection proceedings commenced in the Superior Court for St. Joseph County, Indiana. Voir dire was completed the following day, and on February 4, 1982, petitioner's jury trial began.
After the presiding judge had read his preliminary instructions to the jury, both sides had made their opening statements, and the State had called its first witness, the judge recessed for lunch. It was only then that the trial judge realized that he had forgotten to swear in the jury.
Following the luncheon recess, the trial judge informed the parties of his failure to swear in the jury before the presentation of evidence. Petitioner immediately moved for mistrial. The motion for mistrial was denied, subject to reconsideration following the judge's evaluation of the relevant law. The judge then resumed the bench and, over petitioner's objection, swore in the jury.
The trial continued for a brief period of cross- and re-direct examination of the State's first witness. Following another recess, the State informed the trial judge that it had no objection to petitioner's earlier motion for mistrial. The motion for mistrial was thereupon granted. Although petitioner reiterated his earlier objection to the belated swearing in of the jury, he did not object to the granting of the mistrial motion or to the order discharging the jury.1
The presiding judge disqualified himself and a special judge, Respondent Whitman, was then selected. Petitioner filed a Motion for Discharge on February 25, 1982, arguing that any further prosecutorial action would constitute a violation of the Fifth Amendment's prohibition against double jeopardy. The special judge denied the motion following a hearing, and petitioner appealed.
On February 14, 1983, the Court of Appeals of Indiana unanimously held that the denial of the motion for discharge was proper and that a retrial of the petitioner would not constitute double jeopardy. Whitehead v. State, Ind.App., 444 N.E.2d 1253 (1983). A petition for rehearing was denied on April 3, 1983, and the Supreme Court of Indiana denied without opinion a petition for transfer on July 8, 1983. No new trial date has been set.
In his petition for writ of habeas corpus, filed on September 19, 1983, petitioner raises but a single issue: whether further prosecution on the same underlying charge would constitute double jeopardy.2
In their Response to Order to Show Cause filed November 22, 1983, respondents raise two arguments: first, that the petitioner waived any double jeopardy claim in the state courts by failing to object to the granting of a mistrial and to the jury's discharge; and, second, that the facts do not show any intentional wrongdoing on the part of either the trial court or the prosecution. To date, petitioner has filed no traverse to the return.3 Because the waiver issue is dispositive of petitioner's claims, respondents' second argument will not be addressed.
Simply stated, the facts are that the petitioner did not object, either to the State's joining4 in petitioner's earlier motion for mistrial or to the trial judge's granting thereof5; neither did petitioner object to the discharge of the jury. All that petitioner did was to note, in open court and on the record, his previous objection to the belated swearing in of the jury.
The Court of Appeals of Indiana found that petitioner waived his right to assert double jeopardy by failing to object to the mistrial or to the discharge of the jury. Whitehead v. State, supra, at 1254. The Court of Appeals of Indiana also observed that, under Indiana procedural rules:
A defendant waives his right to assert double jeopardy if he fails to object to the discharge of the jury. Moyer v. State, supra. 177 Ind.App. 461, 379 N.E.2d 1036 Whitehead concedes in his brief that no direct objection was made to the discharge of the jury. He contends that his objection may be implied. However, his only objection was to the swearing of the jury, not to its discharge. In order to preserve error, an objection must be specific and a basis for the objection not raised in the trial court cannot be raised on appeal. Brown v. State, (1981), Ind., 417 N.E.2d 333, 336. (Id., at 1254-55, fn. 3).
Since petitioner was found to have waived his double jeopardy claim, consideration of the claim is narrowly circumscribed in this habeas corpus proceeding. The finding of the Court of Appeals of Indiana constitutes a State procedural waiver that bars federal habeas corpus review (even if the claim implicates the Constitution), absent a showing of cause by the petitioner for his failure to make a timely objection and actual prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also, generally, United States ex rel Hudson v. Brierton, 699 F.2d 917 (7th Cir.1983); Ford v. Israel, 701 F.2d 689 (7th Cir.1983); United States ex rel Knights v. Wolff, 713 F.2d 240 (7th Cir. 1983); Sanders v. Israel, 717 F.2d 422 (7th Cir.1983); Farmer v. Prast, 721 F.2d 602 (7th Cir.1983); Williams v. Duckworth, 724 F.2d 1439 (7th Cir. Jan. 5, 1984).
At the risk of being accused of perfunctorily addressing petitioner's arguments, the simple fact is that petitioner's failure to object to the granting of a mistrial and to the discharge of the jury acted as a waiver and constituted a procedural default that can only be overcome in a habeas proceeding by a clear showing of cause and prejudice. Petitioner has made no such showing in this record, preferring instead to raise arguments about such collateral issues as "manifest necessity".
Accordingly, and based on the above, the writ is DENIED,...
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Whitehead v. State
...denied. Appellant also filed a petition for a writ of habeas corpus in federal court. That petition also was denied. Whitehead v. Richardson (N.D.Ind.1984), 580 F.Supp. 44. Appellant again claims his constitutional right not to be placed in jeopardy twice for the same crime was violated. We......