Wright v. Maryland Penitentiary, State of Maryland

• Decision Date: 23 June 1970
• Docket Number: No. 12942.,12942.
• Citation: 429 F.2d 1101
• Parties: Elijah WRIGHT, Appellant, v. MARYLAND PENITENTIARY, STATE OF MARYLAND, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

429 F.2d 1101 (1970)

Elijah WRIGHT, Appellant, v. MARYLAND PENITENTIARY, STATE OF MARYLAND, Appellee.

No. 12942.

United States Court of Appeals, Fourth Circuit.

Argued April 7, 1970.

Decided June 23, 1970.

Robert E. Cahill, Baltimore, Md. (Court-assigned counsel) for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., of Maryland (Francis B. Burch, Atty. Gen. of Maryland, on brief) for appellee.

Before BRYAN, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Elijah Wright appeals from the denial of his federal petition for a writ of habeas corpus. He asks that we reverse the district court and order that the writ issue conditionally — unless Maryland will credit the time he was incarcerated before trial against his state sentence. Because Wright must further exhaust his state remedies, we remand to the district court with instructions.

I.

On December 18, 1964, the police arrested Wright and charged him with murder. Two years and six weeks later, on January 31, 1967, a jury convicted him of murder in the second degree. Part of the delay between his arrest and conviction occurred when Wright elected to have his first indictment declared void under Schowgurow v. State of Maryland, 240 Md. 121, 213 A.2d 475 (1965).¹ An even greater delay was occasioned by Wright's plea of "not guilty by reason of insanity," which required physical and mental examinations spanning more than eleven months.

The state trial judge sentenced Wright to eighteen years, the maximum then provided by Maryland law for his crime. The judge refused to credit the time Wright spent in pretrial custody against his sentence. Wright appealed to the Maryland Court of Special Appeals on this issue, but on December 20, 1967, that court affirmed the trial judge's denial of credit. Wright v. State of Maryland, No. 40 September Term, 1967 (Unreported Per Curiam, December 20, 1967). The Maryland Court of Appeals denied certiorari on April 22, 1968.

Wright filed a federal petition for habeas corpus on May 1, 1968. Initially, the district court denied relief without a hearing, but subsequently granted a motion for reconsideration and ordered the attorney general of Maryland to show cause why Wright's petition should not be granted. After Maryland had answered the order to show cause, the district court again denied Wright's petition. In the district court's view Wright was challenging the length of his state sentence, and it is well established that sentences within state statutory limits present no federal question. E.g., United States ex rel. Long v. Pate, 418 F.2d 1028 (7th Cir. 1969); Stevens v. Warden, Md. Pen., 382 F.2d 429 (4th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1423, 20 L.Ed.2d 288 (1968). Since Maryland law does not presently require a sentencing judge to give credit for time spent in jail prior to trial, State of Maryland v. Ewell, 234 Md. 56, 198 A.2d 275 (1964); Hirons v. Warden, Md. Pen., 209 Md. 622, 120 A.2d 203 (1956); Hands v. Warden, Md. House of Corrections, 205 Md. 642, 109 A.2d 51 (1954); Williams v. State of Maryland, 2 Md.App. 170, 234 A.2d 260 (1967); but see Jenkins v. Warden, Md. Pen., 4 Md.App. 629, 244 A.2d 468 (1968); Reeves v. State of Maryland, 3 Md.App. 195, 238 A.2d 307 (1968), the district court reasoned that Wright's sentence was within permissible state limits. The district court quoted a statement from the Maryland Court of Special Appeals' opinion in Wright's case, reading: "Much of the time between arrest and trial was consumed by physical and mental examinations made on behalf of Wright." The district court quoted this statement to distinguish Reeves v. State of Maryland, 3 Md.App. 195, 238 A.2d 307 (1968), in which the Maryland Court of Special Appeals held that a sentence imposed following a second trial must include credit for time served under the original sentence. Reeves, however, specifically refrained from overruling Williams v. State of Maryland, 2 Md. App. 170, 234 A.2d 260 (1967), in which a prisoner had requested, and been denied, credit against his sentence for time served prior to trial. Instead Reeves reaffirmed the Williams' holding as appropriate under the "circumstances of that case." 3 Md.App. at 204, 238 A.2d at 313 n.5. Those "circumstances" included a statement in Williams to the effect that a portion of the time spent in jail before trial was attributable to the fact that the prisoner "chose to exercise his right to move for the dismissal of the original indictments in the case, * * *" 2 Md.App. at 176, 234 A.2d at 264. Williams thus implied that a prisoner is not entitled to credit against his sentence for time in pretrial custody, if the time is spent exercising state-granted rights. Since the Maryland court made a similar statement in denying Wright's appeal, the district court apparently believed Williams was dispositive of Wright's contentions. See also Jenkins v. Warden, Md. Pen., 4 Md.App. 629, 244 A.2d 468, 469 n. 4 (1968).

II.

Wright asserts that unless Maryland gives him credit for the time he spent in pretrial custody it is effectively imposing a sentence greater than the maximum allowed by state law. This arguably violates the Constitution in two ways. First, it may constitute multiple punishment for a single offense, thereby, offending the double jeopardy clause of the fifth amendment, which is enforceable against the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Secondly, it may be an unjustifiable conditioning of Wright's pretrial prerogative to challenge his first indictment and explore an insanity defense; if so, the unreasonable state condition violates the due process clause of the fourteenth amendment. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In North Carolina v. Pearce, supra, the Supreme Court held that

the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully "credited" in imposing sentence upon a new conviction for the same offense. (Emphasis added).

395 U.S. at 718-719, 89 S.Ct. at 2077. The Court also promulgated a rule to prevent the imposition of more severe sentences upon reconviction after a new trial in most cases. No harsher sentence may be imposed unless in the record there "affirmatively appear" reasons for harsher punishment, "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." 395 U.S. at 726, 89 S.Ct. at 2081. The reason for this rule is to avoid a chilling effect on the exercise of basic constitutional liberties. "Due process * * * requires that a defendant be freed of apprehension of * * * a retaliatory motivation on the part of the sentencing judge." North Carolina v. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080 (1969); See Van Alstyne, In Gideon's Wake; Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L.J. 606 (1965); Note, The Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960); Comment, Another Look at Unconstitutional Conditions, 117 U.Pa.L.Rev. 144 (1968). See also Note, The Unconstitutionality of Plea Bargaining, 83 Harv. L.Rev. 1387 (1970).

Wright clearly raises substantial constitutional questions under the Pearce decision. See United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Van Alstyne, In Gideon's Wake; Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L.J. 606 (1965); Note, The Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960); Comment, Another Look at Unconstitutional Conditions, 117 U.Pa. L.Rev. 144 (1968). But see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (decided May 4, 1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (decided May 4, 1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (decided May 4, 1970); Gremillion v. Henderson, 425 F.2d 1293 (5th Cir. 1970). See also Note, The Unconstitutionality of Plea Bargaining, 83 Harv.L.Rev. 1387 (1970). But Maryland argues that denying credit for pretrial incarceration substantively differs from denying credit for time served between trials. The attorney general of Maryland argues that denying credit to Wright cannot be deemed multiple punishment, since "two punishments are not meted out here, as is the circumstance where a defendant is convicted, sentenced, and then wins a retrial and must be again convicted and sentenced." Because Wright was effectively a nonbailable offender, he reasons that there is a distinction between one who is denied bail because he is indigent and Wright, who was not legally entitled to bail. He suggests that indigency may not be a valid state reason for denying a prisoner credit for pretrial incarceration, but being a nonbailable offender is.

Although the constitutional issues in Wright's case are substantial, the Maryland appellate courts have had no opportunity to consider them in light of Pearce.² As a general rule, state courts should have an opportunity to apply a recent change in constitutional law to a prisoner's case, when the change was effectuated by a Supreme Court decision rendered after the state courts have last considered the case. James v. Copinger, 428 F.2d 235 (4th Cir. 1970); Ney v. Oberhauser, 419 F.2d 828 (9th Cir. 1969); Subilosky v. Massachusetts, 412 F.2d 691 (1st Cir. 1969); Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968); Pate v. Holman, 343 F.2d 546 (5th Cir. 1965); United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th Cir. 1965); Miller v. Gladden, 341 F.2d 972 (9th Cir. 1965); Blair v. California, 340 F.2d 741 (9th Cir. 1965); Pennsylvania ex rel. Raymond v....