Petition — Lucas v. Rivers

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¥

. :

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

+— 75-1909

No. 75-4

WILLIAM LUCAS and

THE HONORABLE HENRY HEADING,

Cross-Petitioners,

v

SEANARFIS RIVERS,

Cross-Respondent.

-™

~

CROSS PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

dé.

wo

Counsel for Respondents

WILLIAM L. CAHALAN

Wayne County Prosecuting

| Attorney

EDWARD REILLY WILSON

Principal Attorney,

Research, Training

and Appeals

PAUL D. BORMAN

Assistant Prosecuting

Attorney

1441 St. Antoine, 12th Floor

Detroit, Michigan 48226

Phone: (313) 577-3952

Interstate Brief & Record Co., 1615 Abbott St., Detroit, Michigan 48216

962-8745

TABLE OF CONTENTS

I is adie andl bh cncees dues senweusdeekee

A LE On ae ae

a ee ha cs

Constitutional Provisions Involved .....................

ee re CR En In ee

Reasons for Granting The Writ

SINCE SUBSEQUENT FEDERAL AND STATE

COURT DECISIONS ESTABLISH THAT THE

ISSUE REMANDED BY THIS COURT FOR

CONSIDERATION OF MOOTNESS IN LUCAS

v. RIVERS, 414 U.S. 89 (1973) IS NOT MOOT,

THIS COURT SHOULD NOW DECIDE THAT

ISSUE: WHETHER THE SIXTH CIRCUIT

COURT OF APPEALS HAS ERRONEOUSLY

INTERPRETED THE DOUBLE JEOPARDY

CLAUSE OF THE UNITED STATES CON-

STITUTION IN HOLDING THAT A STATE

DEFENDANT WHO SUCCESSFULLY OVER-

TURNS HIS PLEA BARGAIN CONVICTION TO

A LESSER OFFENSE IS IMMUNE FROM

PROSECUTION ON THE ORIGINAL CHARGE

A. SUBSEQUENT MICHIGAN DECISIONS ...

B. SUBSEQUENT FEDERAL COURT PRO-

CEEDINGS IN RIVERS v. LUCAS .........

THE SIXTH CIRCUIT PRECEDENT ON

WHICH THE INSTANT ORDER IS BASED

CONFLICTS WITH DECISIONS OF THREE

See MUS. dnnnevecstacancerecesens

ta

w~ ww

2 Page

Lucas v. Rivers, 414 U.S. 896 (1973) .......... 2.5.6.7

iil. THE SIXTH CIRCUIT COURT OF APPEALS ,

Mullreed v. K , 425 F.2d 1095 (6th Cir. 1970 6.7.11,14

ERRONEOUSLY INTERPRETED THIS re ae oe

COURT’S HOLDINGS IN GREEN v. UNITED People v. Draine, 391 Mich. 820 (1974) ...... ........

STATES, 355 U.S. 184 (1957), AND PRICE v. | People v. McMiller, 389 Mich. 425, 208 N.W.2d 451,

GEORGIA, 398 U.S. 323 (1970), IN EXTENDING cert. denied 414 U.S. 1080 (1973) ..........0.0ee0: 5.7

DOUBLE JEOPARDY CLAUSE PROTECTIONS

IN MULLREED v. KROPP. 425 F.2d 1095 (6th | Price v. Georgia, 398 U.S. 323 (1970) ............ 14.16

Cir., 1970), and RIVERS v. LUCAS, 477 F.2d 199 Rivers v. Lucas

(6th Cir.) vacated, 414 U.S. 896 (1973). .......... 14 U.S. Court of Appeals for the Sixth Circuit.

[V. THE EXTENSION OF DOUBLE JEOPARDY Unpublished Order, Nos. 75-1853, 1854. May 25,

CLAUSE PROTECTIONS BY THE SIXTH CIR- ORE TR ES oh oe ee Se 2.6.10

CUIT COURT OF 'tAPPEALS, CONFLICTS U.S. Court of Appeals for the Sixth Circuit,

WITH THIS COURT’S DECISION IN SAN- Unpublished Order Nos. 75-1853. 1854, February

TOBELLO v. NEW YORK, 404 U.S. 257(1971). .. 16 Be TROD se deccdcvosdetecvevvscvepesccscc ct ttye 1.6

V. THE DISTRICT JUDGE ERRONEOUSLY U.S. Court of Appeals for the Sixth Circuit.

FORECLOSED ANY EXERCISE OF DISCRE- Unpublished Order, No. 72-1972, December 10

TION, IN HOLDING THAT UNDER RULE 60, BD 66606 000Gb d nen d4e ney 46sec sete dauateee 2.5

FEDERAL RULES OF CIVIL PROCEDURE, 477 F.2d 199 (6th Cir.), vacated. 414 U.S. 896

THE 1972 ORDER WAS FINAL, *‘BINDING ON | a: a OS A 2.7.11.14,15

THE PARTIES AND MAY NOT BE SET

eS IER 6 LAR ey Ae 18 U.S. District Court. E. D. Michigan. Unpublished

Order and Memorandum Opinion No. 38347, May

CONCLUSION seo eeeeeeese ee ees eeeeeseeeseeseeeseeeeseees 20 we 1975 PEE ERS IS BY Wh Ws BPe TEE OE oes 2.5,10.11.19

APPENDIX eo eee ee ee eer ee eee eeeseeeeeeeeeeeeeeeeeeeese 21 345 F. Supp. 718 (E.D. Mich. 1972) Bo let) Pee 2.4.7. 11

INDEX OF AUTHORITIES Santobello v. New York, 404 U.S. 257 (1971) ..... 16,18

CASES United States v. Anderson, 5i4 F.2d 583 (7th Cir.

I Silat bled re ee edd i ie ce Sead eae 11,12

Benton v. Maryland, 395 U.S. 784 (1969) ............. 12

at ' | United States Ex Rel. Williams v. McMann, 436 F.2d

Booker v. Phillips, 418 F.2d 424 (10th Cir. 1969) ...... 12 103 (2d Cir. 1970). cert. denied, 402 U.S. 914

Green v. United States, 355 U.S. 184 (1957) ...... 14,15 | SE n.4bc Kae edadRaseeiek thats bb eensnsddens 12,13

Harris v. Anderson, 364 F. Supp. 465 (W.D.N.C., Ward v. Page. 424 F.2d 491 (10th Cir. 1970). cert.

SUPE avedsunss oabeestsusbedseeedeuccemaeesucses 13 | GE, Ge Wes DOT ENETED cocccccceseccscccieces 12

In Re Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 | Miscellaneous

BED svn cckddes vebnendceniilestaluiiemeariantls 9 |

Rule 60. Federal Rules of Civil Procedure ........ 18.19

iv

TABLE OF CONTENTS OF APPENDIX

Page

A. River v. Lucas, U.S. Court of Appeals for the Sixth

Circuit, Unpublished Order, Nos. 75-1853, 1854,

oo PF Ge ee 21

B. Rivers v. Lucas, U.S. Court of Appeals for the Sixth

Circuit, Unpublished Order, Nos. 75-1853, 1854, May

BD, CIGD cccveccccecavccssseeeenssenuenneeee 22

C. Rivers v. Lucas, U.S. District Court E. D. Michigan,

Unpublished Order and Memorandum Opinion No.

Saeee, TEN 7, URS «svccsceeeseunseseneueneeee 23,24

D. Lucas v. Rivers, 414 U.S. 896 (1973) ............... 27

E. Rivers v. Lucas, U.S. Court of Appeals for the Sixth

Circuit, Unpublished Order, No. 72-1792, December

TD, TTS .cvcccccoceseeseceseeun seep sense 28

F. Rivers v. Lucas, 477 F.2d 199 (6th Cir.), vacated, 414

FS Tt Meer ee 29

G. Rivers v. Lucas, 345 F. Supp. 718 (E. ‘> Mich. 1972) 37

H. Michigan Compiled Laws, Section 9.316. First

Pee eeceuneees 40

Supreme Court of the United States

OCTOBER TERM, 1975

=

4

No. 75-6792

WILLIAM LUCAS and

THE HONORABLE HENRY HEADING,

Cross-Petitioners,

v

SEANARFIS RIVERS,

Cross-Respondent.

=

vr

CROSS PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

.

wv

OPINIONS BELOW

The judgment of the United States Court of Appeals

for the Sixth Circuit. Rivers v. Lucas, February 20, 1976,

not reported, appears in Appendix A, Page 21

{hereinafter Rivers v. Lucas, Court of Appeals Order,

February 1976]. The judgment of the Court of Appeals,

May 25, 1976, denying Cross-Petitioners’ timely petition

for rehearing with a suggestion for rehearing en banc. not

reported, appears in Appendix B, Page 22 [herein-

after Rivers v. Lucas, Court of Appeals Order, May

1976}.

2

The District Court Order and the accompanying

memorandum opinion, May 7, 1975, not reported, appear

in Appendix C, Page 24 [hereinafter, Rivers v. Lucas,

District Court Order, May 1975]. Previous opinions in the

instant case also appear in the Appendix: Lucas v.

Rivers, 414 U. S. 896 (1973), Appendix D, Page 27;

Rivers v. Lucas, U.S. Court of Appeals for the Sixth

Circuit, unpublished order, No. 72-1792, December 10,

1973, Appendix E, Page 28 [hereinafter Rivers v. Lucas,

Court of Appeals Order, December 1973]; Rivers v.

Lucas, 477 F.2d 199 (6th Cir.), vacated, 414 U.S. 896

(1973), Appendix F, Page 29; Rivers v. Lucas, 345 F.

Supp. 718 (E.D. Mich. 1972), Appendix G, Page 37.

f

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on February 20, 1976,

affirming the Federal District Order of May 7, 1975. On

May 25, 1976 the Court of Appeals denied a timely

petition for rehearing with a suggestion for rehearing en

banc. This petition for certiorari was filed within 90 days

of that latter ruling.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

QUESTION PRESENTED

Where a Defendant has succeeded on appeal in

overturning his plea bargain conviction to a lesser

offense, does the double jeopardy clause of the Fifth

Amendment to the United States Constitution, as applied

to the States via the Fourteenth Amendment, bar the

State from bringing him to trial on the original more

serious charge.

CONSTITUTIONAL PROVISIONS INVOLVED

FIFTH AMENDMENT. U.S. CONSTITUTION

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury. except in cases arising in the

land or naval forces, or in the Militia. when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself. nor be

deprived of life. liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

FOURTEENTH AMENDMENT. U.S. CONSTITUTION

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property. without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws... ..

STATEMENT OF THE CASE

On October 19, 1970 Seanarfis Rivers. Cross-

Respondent herein, was charged. in an information

filed in the Recorder's Court for the City of Detroit with

the offense of murder in the first degree in perpetration of

a larceny (Michigan Compiled Laws 1948, 750.316 as

amended by PA 1969 No. 331 (Appendix H. Page 39).

4

Cross-Respondent Rivers was not charged with being the

actual killer. On January 19, 1971, Cross-Respondent

Rivers entered a plea of guilty to the lesser offense of

manslaughter. On February 9, 1971, Cross-Respondent

Rivers was sentenced to imprisonment for not less than

fourteen years nor more than fifteen years.

On June 28, 1971, the Recorder’s Court judge denied

Cross-Respondent Rivers’ Motion to Set Aside Plea of

Guilty and for a New Trial. On that same date

Cross-Respondent Rivers filed a Claim of Appeal in the

Michigan Court of Apreals.

On March 23, 1972, the Michigan Court of Appeals

reversed the plea conviction of Cross-Respondent Rivers

because he had not been adequately advised of his

federal constitutional rights by the trial judge prior to

acceptance of the plea. The Court of Appeals remanded

the cause to the Recorder’s Court for further

proceedings.

On April 18, 1972, Cross-Respondent Rivers filed with

the Recorder’s Court a Motion to Quash Information or

to Reduce Charge to Manslaughter. This motion was

denied on May 11, 1972. Both the Michigan Court of

Appeals and the Michigan Supreme Court denied

Cross-Respondent Rivers’ subsequent motions for a stay

and leave to appeal, May 15, 1972 and May 18, 1972,

respectively.

On May 23, 1972, Cross-Respondent Rivers filed

Application for a Writ of Habeas Corpus in the United

States District Court, Eastern District of Michigan,

Southern Division, pursuant to which the Honorable John

Feikens on June 14, 1972 ordered that the

Cross-Respondent be released from custody unless the

State reduced the charge on the information to no more

than manslaughter. Rivers v. Lucas, 345 F. Supp. 718

(E.D. Mich. 1972) (Appendix G, Page 37). That order

5

was affirmed by the United States Court of Appeals for

the Sixth Circuit on April 24, 1973. Rivers v. Lucas, 477

F.2d 199 (6th Cir., 1973) ‘Appendix F, Page 29).

In Lucas v. Rivers, 414 U.S. 896 (1973), this Court

granted Cross-Petitioner’s petition for certiorari, vacated

the Court of Appeals judgment, and remanded to the

Court of Appeals for consideration of the question of

mootness in light of the Michigan Supreme Court

decision in People v. McMiller, 389 Mich. 425, 208

N.W.2d 451, cert. denied, 414 U.S. 1080 (1973).

On remand, the Court of Appeals determined that the

only issue on appeal had become moot as a result of

People v. McMiller, supra, and thereupon ordered the

appeal dismissed pursuant to Rule 8, Rules of the Sixth

Circuit. Rivers v. Lucas, Court of Appeals Order

December 1973 (Appendix E, Page 28).

On April 11, 1975, Cross-Petitioners filed a Motion for

Clarification of Status in the United States District Court

for the Eastern District of Michigan seeking official

confirmation of their belief that the 1972 district court

order had been mooted by the subsequent actions of the

United States Supreme Court and the Court of Appeals.

On April 15, 1975, Cross-Respondent filed a new

petition for a Writ of Habeas Corpus with the District

Court.

On May 7, 1975, Judge Feikens, responding both to the

motion by Cross-Petitioners, and the second habeas

corpus petition filed by Cross-Respondent held that the

1972 order continued to be viable, and ‘‘ordered that

Petitioner be released from all custody unless the People

reduce the charge on the information ... to not more

than manslaughter and commence trial on such

information within ninety days."’ Rivers v. Lucas.

District Court Order. May 1975 (Appendix C. Page 23).

6

On February 20, 1976, the Court of Appeals affirmed

the District Court order of May 7, 1975. Rivers v. Lucas,

Court of Appeals Order, February 1976, (Appendix A.

Page 21). On May 25, 1976, the Court of Appeals denied

a timely petition for rehearing with a suggestion for

rehearing en banc: Judges Celebrezze and McCree voted

in favor of rehearing en banc. Rivers v. Lucas, Court of

Appeals Order. May 1976 (Appendix B, Page 22).

The basis for federal jurisdiction in the United States

District Court for the Eastern District of Michigan.

Southern Division, was asserted by Respondent and

found by the District Court to be habeas corpus

jurisdiction under 28 7 2254.

REASONS FOR GRANTING THE WRIT

I. SINCE SUBSEQUENT FEDERAL AND STATE

COURT DECISIONS ESTABLISH THAT THE ISSUE

REMANDED BY THIS COURT FOR CONSIDERA-

TION OF MOOTNESS IN LUCAS v. RIVERS, 414 U.S.

896 (1973), IS NOT MOOT, THIS COURT SHOULD

NOW DECIDE THAT ISSUE: WHETHER THE SIXTH

CIRCUIT COURT OF APPEALS HAS ERRONE-

OUSLY INTERPRETED THE DOUBLE JEOPARDY

CLAUSE OF THE UNITED STATES CONSTITUTION

IN HOLDING THAT A STATE DEFENDANT WHO

SUCCESSFULLY OVERTURNS HIS PLEA BARGAIN

CONVICTION TO A LESSER OFFENSE IS IMMUNE

FROM PROSECUTION ON THE ORIGINAL

CHARGE.

The original 1972 district court order, relied on the

precedent of Mullreed v. Kropp, 425 F.2d 1095 (6th Cir..

1970), in holding that cross-petitioners could not bring

7 2

cross-respondent to trial on an offense more serious than

that to which he piead guilty:

In Mullreed v. Kropp, supra, the United States

Court of Appeals held that when a plea to a lesser

included offense is accepted, this constitutes a

deliberate decision by the State to relinquish its

right to proceed on the greater charge and

jeopardy attaches. Rivers v. Lucas, 345 F. Supp.

718, 719 (E.D. Mich. 1972).

The Court of Appeals affirmed the district court and

reaffirmed Mullreed v. Kropp, supra, in Rivers v. Lucas,

477 F.2d 199 (6th Cir.), vacated, 414 U.S. 896 (1973):

We affirm that there is implicit in a Court's

acceptance of a plea to an included offense a

determination that the rigit to prosecute the

defendant on the more serious offense with which

he is charged has veen relinquished. The effect of

the entire transaction, for double jeopardy

purposes, is the equivalent of a jury's refusal to

convict on the more serious charge.

We continue to adhere to our decision in

Mullreed v. Kropp, supra [425 F.2d 1095 (6th Cir..,

1970)], Rivers at 202-203.

When this Court vacated that judgment in Lucas v.

Rivers, 414 U.S. 896 (1973). and remanded for

consideration of mootness in light of Peuple v. McMiller

389 Mich. 425, 208 N.W.2d 451 (1973), the Court

of Appeals held that the issue on appeal, the challenge of

that court's interpretation of the double jeopardy clause,

was moot since People v. McMiller, supra, had held

‘‘that as a matter of policy that the State may not charge

a defendant in a criminal case who has pleaded guilty to a

lesser offense included if the indictment and thereafter

successfully appealed the\ judgment based on such guilty

plea. with a higher offe arising out of the same

transaction.” Rivers v. Lucas, Court of Appeals Order,

December 1973. (App. E, P. 28)

A. SUBSEQUENT MICHIGAN DECISIONS

Although in 1973 both the Sixth Circuit's double

jeopardy-based protections and the Michigan policy-based

protections applied to every successful appellant from a

plea bargain conviction to a lesser offense, two

subsequent Michigan Supreme Court decisions have

withdrawn the McMiller protections from certain

successful appellants for whom relief continues to be

available in the federal courts within the Sixth Circuit.

In People v. Draine, 391 Mich. 820 (i974), the

Michigan Supreme Court. without discussing People vy.

McMiller, supra, issued this memorandum opinion:

‘‘Upon remand if defendant-appellant desires to

[again] tender a plea of guilty to the ... offense

of assault with intent to do great bodily harm less

than murder, he may do so. If defendant-appellant

does not wish to so plead, or the .. . judge is

unable to accept defendant-appellant’s plea to said

charge, the cause may proceed to trial upon the

charge set forth in the original information

charging second degree murder.’ Draine at 820.

That disposition, permitting the prosecutor to procevd to

trial on the original charge if the defendant refused to

plead again to the lesser offense, is in direct conflict with

the Court of Appeals holdings in Mullreed v. Krupp,

supra, and Rivers v. Lucas, supra.

9

In In Re Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d

132 (1975) the Michigan Supreme Court discussed Peuple

v. McMiller, supra, and then proceeded to withdraw

some of its protective coverage:

“If the prosecutor calls the Court's attention to

plea-taking error before the plea is accepted.

McMiller will not apply in the event the trial court

vacates the plea on defendant's motion or with

defendant's consent, or the trial court is reversed

on appeal on the basis of the same error.”’ In re

Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132.

148 (1975).

Thus, /n Re Guilty Plea Cases, supra, fails to provide

McMiller protections to a successful appellant from a

plea bargain conviction where the prosecutor has pointed

out the plea-taking error to the Court before the plea has

been accepted. However, although Michigan law would

now permit the prosecutor to proceed against the

successful appellant on the original more serious charge

in the aforementioned situation, to do so would conflict

with Sixth Circuit precedent.

B. SUBSEQUENT FEDERAL COURT

PROCEEDINGS IN RIVERS v. LUCAS

In 1975, Cross-Respondent Rivers having refused io

plead guilty again to manslaughter, Cross-Petitioners

sought to proceed to trial on the origina! charge on the

basis of People v. Draine, supra. However. when

Cross-Repondent threatened to have Cross-Petitioners

held in contempt for violating the 1972 District Court

order. which Cross-Petitioners had assumed to have been

mooted by the subsequent actions of this Court and the

Court of Appeals, Cross-Petitioners filed a Motion for

10

Clarification in the District Court. On May 7, 1975, the

District Court held that its 1972 order was still binding.

Rivers v. Lucas, District Court Order, May 1975. (App.

C, P. 23)

At the appellate argument before the Court of Appeals

on February 12, 1976, Presiding Judge Wade H. McCree

informed counsel that it was the unwritten policy of the

Sixth Circuit to follow the precedent of previous panels,

and that Mullreed v. Kropp, supra, was binding

precedent in the instant case. Judge McCree advised

counsel that a petition for rehearing with a suggestion for

rehearing en banc was the appropriate procedure for

seeking a review of the Mullreed precedent.

Cross-Petitioners’ timely ' petition for rehearing with a

suggestion for rehearing en banc was denied by the Court

of Appeals on May 25, 1976; Judges Celebrezze and

McCree voted in favor of the rehearing en banc. Rivers

v. Lucas, Court of Appeals Order, May 1976. (App. B, P.

22)

Thus. the issue previously before this Court can no

longer be considered moot for the following reasons:

1. The 1975 district court order held that the

1972 order continues to be binding on

Cross-Petitioners. The Court of Appeals continues

to apply the double jeopardy clause protections

developed in Mullreed v. Kropp, supra.

2. Michigan court decisions no longer provide

the same comprehensive protections provided by

the Sixth Circuit.

These reasons justify the grant of certiorari to review

the judgment below.

Il. THE SIXTH CIRCUIT PRECEDENT ON

WHICH THE INSTANT ORDER IS BASED CON-

FLICTS WITH DECISIONS OF THREE COURTS OF

APPEAL.

The 1975 District Court Order, Rivers v. Lucas,

District Court Order, May 1975, reaffirmed the continued

vitality of the 1972 District Court Order. Rivers v. Lucas,

345 F. Supp. 718 (E.D. Mich., 1972), which had relied on

the precedent of Mullreed v. Kropp, 425 F.2d 1095 (6th

Cir., 1970).

Whether or not Rivers v. Lucas, 477 F.2d 199 (6th

Cir.), vacated 414 U.S. 896 (1973), continues to be viable

precedent is not crucial, because Mullreed v. Kropp,

supra, remains as binding precedent in the Sixth Circuit.

Mullreed held that the double jeopardy clause would be

violated if a successful appellant from a plea bargain

conviction to a lesser offense were permitted to be tried

on the original more serious charge.

This unique Sixth Circuit extension of double jeopardy

clause protections conflicts with decisions of three other

federal courts of appeal.

The Second, Seventh and Tenth Circuit Courts of

Appeal have declined to limit the prosecution on remand

to proceeding on the plead-to lesser offense after a

defendant's successful appeal of his plea bargain

conviction. Two of the Circuits. the Seventh and the

Tenth, have specifically rejected a claim of double

jeopardy, while the Second Circuit resolved this situation

on due process grounds.

In United States v. Anderson, 514 F.2d 583 (7th Cir.,

1975). the Court of Appeals for the Seventh Circuit

12

specifically rejected the Sixth Circuit's application of the

double jeopardy clause to this situation:

‘“We believe that the Sixth Circuit's position is

incorrect and refuse to follow it .... To hold

otherwise is to find that the Double Jeopardy

Clause gives the defendant more the ‘benefit of

his bargain’ and ensures that he will not even be

placed in jeopardy once under certain

circumstances.’’ United States v. Anderson,

supra, at 587.

In Ward v. Page, 424 F.2d 491 (10th Cir., 1970). cert.

denied, 402 U.S. 914 (1971), the Court of Appeals for the

Tenth Circuit similarly refused to apply double jeopardy

clause protections to the remand after a successful appeal

from a plea bargain conviction to a lesser offense:

‘It is true that a guilty plea is as final as a jury

verdict, but the double jeopardy implications

reverberating from a guilty plea and a jury verdict

are not identical .... Without having been

acquitted on the greater offense, neither Benton

[v. Marvland, 395 U.S. 784 (1969)] nor Booker [v.

Phillips, 418 F.2d 424 (10th Cir., 1969)] precludes

retrial in this case on the greater offense and

appellant’s double jeopardy argument must fail.”

Ward at 493.

In United States ex rel. Williams v. McMann, 436 F.2d

103 (2d Cir., 1970), cert. denied, 402 U.S. 914 (1971),

after the defendant withdrew his plea to a lesser offense.

he was convicted at trial on the more serious original

charge and was given a more severe sentence. After

rejecting the defendant's due process claim that he could

not be given a more severe sentence, the Court stated

13

that apart from due process grounds, it was necessary to

reject defendant's claim to preserve plea bargaining:

‘*For us to hold that one in Williams’ position

may not be tried and sentenced upon the charge

originally brought would encourage gamesmanship

of a most offensive nature .... Indeed any

reason the defendant could conceive for setting

aside his plea and sentence would lose him little.

If the Defendant’s argument were to prevail, then

a trial on the lesser charge only could result... .

This is nothing more than a ‘heads-I-win-tails-you

lose’ gamble. To frustrate this strategy.

prosecutors would be restrained from entering

plea bargains, thereby adding further to the

Staggering burdens of our criminal courts, and

judges would become more rigid in exercising

their discretion in favor of permitting withdrawal

of a guilty plea. This would hardly enhance the

administration of criminal justice.’’ Jd. at 106-107.

Further evidence of federal court conflict with the

Sixth Circuit is Harris v. Anderson, 364 F. Supp. 465

(W.D.N.C., 1973). where a district court in the Fourth

Circuit rejected a defendant's claim that the double

jeopardy clause prevented the state from prosecuting him

on the more serious original charge after he withdrew his

guilty plea to a lesser offense.

These aforementioned conflicts justify the grant of

certiorari to review the judgment below.

14

Ill. THE SIXTH CIRCUIT COURT OF APPEALS

ERRONEOUSLY INTERPRETED THIS COURT’S

HOLDINGS IN GREEN v. UNITED STATES, 355 U.S.

184 (1957) AND PRICE v. GEORGIA, 398 U.S. 323

(1970) IN EXTENDING DOUBLE JEOPARDY

CLAUSE PROTECTIONS IN MULLREED v. KROPP,

425 F.2d 1095 (6th Cir., 1970), and RIVERS v. LUCAS,

477 F.2d 199 (6th Cir.) vacated, 414 U.S. 896 (1973).

In Mullreed v. Kropp, supra, and its progeny, Rivers v.

Lucas, supra, the Sixth Circuit Court of Appeals cited

Green v. United States, supra, and Price v. Georgia,

supra, as authority for holding that when a defendant

succeeds in vacating his plea conviction to a lesser

offense, the double jeopardy clause limits the prosecution

to proceeding on the plead-to lesser offense.

In Mullreed, the Court reasoned:

The practical effect of his guilty plea had the

same impact upon Mullreed as a jury verdict of

guilty would have had.

The difference between this case and Benton v.

Maryland, supra, 395 U.S. 784 .... is that in

that case a jury had made an express acquittal. In

Green v. United States, supra, 355 U.S. 184....

the verdict was silent as to the first degree murder

charge. upon which the Court held that the

defendant had been acquitted. The State urges

these distinctions of constitutional dimensions. We

think not. We hold that the situation here in

substance is not distinguishable from Benton and

Green. Mullreed v. Kropp, supra, at 1101-1102.

15

In Rivers v. Lucas, supra, the Court of Appeals

reaffirmed the Mullreed extension of double jeopardy

clause protections:

Shortly after Mullreed v. Kropp. supra, was

announced, the Supreme Court .. . rendered its

decision in Price v. Georgia, 398 U.S. 323 ....

Adopting the continuing jeopardy theory as

described in Green v. United States, supra, the

Court held that a jury's conviction of

manslaughter implied an acquittal of the charge of

murder and the defendant could not again be

subjected to the hazard of a murder conviction

following reversal of the manslaughter conviction.

We affirm that there is implicit in a court's

acceptance of a plea to an included offense a

determination that the right to prosecute the

defendant on the more serious offense with which

he is charged has been relinquished. The effect of

the entire transaction. for double jeopardy

purposes, is the equivalent of a jury's refusal to

convict on the more serious charge. Rivers v.

Lucas, supra, at 202.

Cross-Petitioners contend that this Court’s decisions in

Green v. United States, supra, and Price v. Georgia,

supra, do not support the Sixth Circuit's extension of

double jeopardy clause protections to the plea bargain

remand situation in Mullreed and Rivers.

In Green, this Court pointed out:

Green was in direct period of being convicted

and punished for first degree murder at this first

trial. Green v. United States. supra, at 190.

16

And in Price this Court explained the concept of

jeopardy:

The twice put in jeopardy language of the

Constitution thus relates to a potential, i.e., the

risk that an accused for a second time will be

convicted of the *‘same offense’’ for which he was

initially tried. Price v. Georgia, supra, at 326

(emphasis added).

In pleading guilty to manslaughter, Cross-Respondent

Rivers did not experience the risk of conviction on the

original felony-murder charge, and this Court has clearly

stated that jeopardy is thai risk of conviction.

The erroneous application by the Court of Appeals of

this Court’s interpretation of the double jeopardy clause

justifies the grant of certiorari to review the judgment

below.

IV. THE EXTENSION OF DOUBLE JEOPARDY

CLAUSE PROTECTIONS BY THE COURT OF

APPEALS CONFLICTS WITH THIS COURT’S DECI-

SION IN SANTOBELLO v. NEW YORK, 404 U.S. 257

(1971).

In Mullreed v. Krupp, supra, and Rivers v. Lucas,

supra, the Court of Appeals held that the double jeopardy

clause prohibits reprosecution on the original charge after

a court has accepted a plea to a lesser offense.

In Santobello v. New York, supra, when a defendant

moved after sentencing to withdraw his guilty plea. this

Court stated:

If the state court decides to allow withdrawal of

the plea [to the lesser offense]. the Petitioner will.

of course. plead anew to the original charge on

two felony counts. /d. at 263 n.2.

17

There is a clear conflict between these two holdings:

under Santobello a defendant who succeeds in

withdrawing his plea is faced with the original charge,

while under Mullreed and Rivers, a similarly situated

defendant can only be charged with the lesser plead-to

offense.

Further, the Mullreed-Rivers precedent seriously

obstructs the normal functioning of the plea bargain

process which this Court has termed ‘an essential

component of the administration of justice’’. Santobello

v. New York, supra, at 260. In the instant case, the effect

of the Mullreed-Rivers precedent was to rewrite the

prosecutor's original offer to create a result neither of the

parties contemplated at the time the plea bargain was

negotiated: that the defendant would stand trial on a

charge of not more than manslaughter. If the prosecutor

is unable to bargain on equal terms, he may be less likely

to utilize the plea bargain process.

The chaotic impact of the Mullreed-Rivers precedent

on the plea-bargain process is further highlighted in the

instant case because the prosecution is unable to bring

Cross-Respondent Rivers to trial on the manslaughter

charge. The facts justifying the felony-murder charge,

involvement in a larceny wherein a killing took place, will

not support a conviction for manslaughter. Manslaughter

is not a lesser included offense of felony murder. At the

same time, the law of Michigan permits the court to

accept a plea if the factual basis supports a finding of the

defendant’s guilt of the original charged offense

(felony-murder) or the offense to which he is pleading

(manslaughter). Michigan General Court Rules 785.7(3).

In pleading guilty to manslaughter, Cross-Respondent

Rivers admitted facts supportive of a finding of guilt of

felony-murder. Thus, the Mullreed-Rivers precedent

unnecessarily limits the number of plea alternatives

available to the prosecution. This unjustifiable

18

one-sided intrusion by the Court of Appeals into the

plea-bargain process conflicts with this Court’s approval

of properly administered plea bargaining in Santobello.

The conflict between the Mullreed-Rivers precedent in

the Sixth Circuit and this Court's decision in Santobello

v. New York, 404 U.S. 257 (1971), and the further

deleterious effect of the Mullreed-Rivers precedent on the

plea bargain process justifies the grant of certiorari to

review the judgment below.

Vv. THE DISTRICT JUDGE ERRONEOUSLY

FORECLOSED ANY EXERCISE OF DISCRETION,

HOLDING THAT UNDER RULE 60, FEDERAL RULES

OF CIVIL PROCEDURE, THE 1972 ORDER WAS FINAL,

‘BINDING ON THE PARTIES AND MAY NOT BE SET

ASIDE.”

The Federal District Court 1975 Memorandum Opinion

states that the court refused to consider a modification or

rescission of its 1972 Order on the ground that under

Rule 60, Federal Rules of Civil Procedure, it *‘may not be

set aside’:

The arguments presented by respondents in

their current motion are different than those

advanced when the case was first before the

court. Specifically, the Prosecutor now expresses

his willingness to eliminate the chill on Rivers’

right to appeal by allowing him to again plead

guilty to manslaughter .. . Even though this is a

19

persuasive argument.* It comes too late. The ‘law

of this case’ is that the United States Court of

Appeals for the Sixth Circuit dismissed the appeal

in 1973 and, accordingly. the June 14, 1972 Order

of this court became the final order. It is now

binding on the parties and may not be set aside.

See Rule 60, Fed R Civ P.

* Were this a case of first impression . . . this court would

find great merit in respondent's present position.

Rivers v Lucas, District Court Order, May 7.

1975. (App. C, P. 25)

Cross-Petitioners contend that the District Court

erroneously held that Rule 60. F.R. Civ. P. precludes

relief from its 1972 Order. Rule 60 ‘b) F.R. Civ. P.

provides:

“(B) On motion and upon such terms as are

just, the court may relieve a party or his legal

representative from a final judgment. order or

proceeding for the following reasons:

(S) the judgment has been satisfied.

released or discharged, or a prior judgment upon

which it is based has been reversed or otherwise

vacated, or it is no longer equitable that the

judgment should have prospective application; or

(6) any other reason justifying relief from the

operation of the judgment. The motion shall be

made within a reasonable time. and for reasons

(1), (2) and (3), not more than one year after the

judgment. order. or proceeding was entered or

taken.

Thus, Rule 60 required the District Court to exercise

discretion in deciding whether Cross-Petitioners’ motion

qualified for relief. and the district judge's action in

foreclosing any exercise of discretion requires reversal of

this order.

20

This error justifies the grant of certiorari to vacate the

1975 District Court order. However, Cross-Petitioners

urge that if this court vacates said order, the case should

not be remanded to the Sixth Circuit for further

determinations since those proceedings will be governed

by the Mullreed-Rivers precedent. Cross-Petitioners pray

that this court proceed to the merits and determine the

validity of the Mullreed-Rivers precedent.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

WILLIAM L. CAHALAN

Wayne County, Michigan

Prosecuting Attorney

EDWARD REILLY WILSON

Principal Attorney, Research

Training and Appeals

PAUL D. BORMAN

Assistant Prosecuting Attorney

1441 St. Antoine, 12th Floor

Detroit, Michigan 48226

Phone: 313 224-5792

July 1, 1976

21

APPENDIX A

No. 75-1853

No. 75-1854

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed February 20, 1976)

Seanarfis Rivers, Petitioner-Appellee

and Cross-Appellant

Vv

William Lucas and The Honorable Henry Heading.

Respondents-Appellants and Cross-Appellees

ORDER

Before: McCree, Miller and Lively, Circuit Judges.

This is an appeal from an order granting conditional

habeas corpus relief. Upon consideration of the entire

record before the court together with the briefs and oral

arguments it is concluded that the judgment of the district

court should be affirmed on appeal and cross-appeal.

Wherefore it is Ordered that the judgment of the

district court be and it hereby is affirmed.

Entered by Order of the Court

/s/ John P. Hehman

Clerk

22

APPENDIX B

NO. 75-1853

NO. 75-1854

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed May 25, 1976)

Seanarfis Rivers, Petitioner-Appellee

and Cross-Appellant

v.

William Lucas and The Honorable Henry Heading

Respondents-Appellants and Cross-Appellees

ORDER

Before: McCree, Lively and Engel, Circuit Judges.

Less than a majority of the judges in active service

having requested a rehearing en banc, the petition for

rehearing filed herein has been referred to a panel of the

court for disposition. Upon consideration of the petition

for rehearing the court concludes that it should be, and it

hereby is denied.

Entered by Order of the Court

/s/ John P. Hehman

Clerk

Judges Celebrezze and McCree voted in favor of

rehearing en banc.

ek nl nt a I we

23

APPENDIX C

ORDER OF THE FEDERAL DISTRICT COURT

, MAY 7, 1975

UNITED STATES DISTRICT COURT

EASTER? DISTRICT OF MICHIGAN

SOUTHERN DIVISION

At a session of said court held in the Federal Building,

Detroit, Michigan. on May 7. 1975.

Present: Hon. John Feikens, United States District

Judge.

This matter having come before the court on

respondents’ motion, the court being fully advised, and

for the reasons set forth in a Memorandum Opinion of

even date,

IT IS ORDERED that petitioner be released from all

custody unless the People reduce the charge on the

information against petitioner to not more than

manslaughter and commence trial on such information

within ninety days.

John Feikens

United States District Judge.

24

FEDERAL DISTRICT COURT MEMORANDUM

OPINION GRANTING WRIT MAY 7, 1975

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

On June 14, 1972, this court granted Seanarfis Rivers’

habeas corpus petition and ordered respondents (the

Sheriff of Wayne County, Michigan, and a judge of the

Recorder’s Court for the City of Detroit) to release him

or to afford him a trial on a charge not greater than

manslaughter. He had earlier been charged with murder,

as a result of a plea bargain, he pleaded guilty to

manslaughter, but then was successful in having that plea

vacated because it was defectively taken. The Wayne

County, Michigan Prosecutor then sought to try him on

the original murder charge. This court’s decision was

affirmed by the United States Court of Appeals for the

Sixth Circuit, 477 F.2d 199 (1973). Subsequently, the

United States Supreme Court vacated the judgment of the

United States Court of Appeals for the Sixth Circuit and

remanded the case for a consideration of the question of

mootness in light of People v. McMiller,' 389 Mich. 425

(1973). On December 10, 1973, the United States Court of

Appeals for the Sixth Circuit issued a second order in

which it noted that under McMiller, supra:

‘Rivers will now be charged with ‘not more

than manslaughter’, the condition originally

prescribed by the district court as an alternative to

relase from custody ....”’

' McMiller, decided after the original habeas petition was filed in

this case, reached a similar conclusion. but for a different reason —

“upon the acceptance of a piea of guilty. as a matter of policy, the

state may not thereafter charge a higher offense arising out of the

same transaction’.

2s

Accordingly. the appeal was dismissed. Petitioner Rivers

now seeks a second writ claiming that the prosecutor

seeks again to try him for murder. He asks release from

all custody.?

Respondents admit that they seek to try petitioner for

murder unless he again pleads guilty to manslaughter. «nd

ask for a “clarification of status’* to make this possible.

The arguments presented by respondents in their

current motion are different than those advanced when

the case was first before the court. Specifically. the

prosecutor now expresses his willingness to eliminate the

chill on Rivers’ right to appeal by allowing him to again

plead guilty to manslaughter. Thus, he argues, Rivers

would be no worse off than he was before entering his

original plea. See Borman. The Chilled Right to Appeal

from a Plea Bargain Conviction: A Due Process Cure. 69

Nw. U.L. Rev. 663 (1975). Even though this is a

persuasive argument," it comes too late. The “‘law of this

case’’ is that the United States Court of Appeals for the

Sixth Circuit dismissed the appeal in 1973 and.

accordingly, the June 14, 1972 order of this court became

the final order. It is now binding on the partics and may

not be set aside. See Rule 60, Fed. R. Civ. P.

? Rivers has been admitted to bail.

* The author of that article. who is the assistant prosecutor in this

cause. states that petitioner's due process rights are fully met by giving

him the option to decide whether to again plead to the charge of

manslaughter or to stand trial on the charge of murder. He argues that

only Rivers may decide that: he notes that in its earlier posture in the

case this decision was made by the prosecutor. Were this a case of

first impression and had not Rivers’ situation languished for many

months while the state authorities were at loggerheads on this issue

(and apparently still are). this court would find great merit in

respendents’ present position

26

While the court is impressed with respondent's analysis

of the case on the merits, there is an elusive quality to its

procedural argument. They argue that this court’s order

was rendered moot by McMiller, and then they claim that

McMiller may be good law and ask the opportunity to

litigate that question. If respondents did not believe

McMiller to be dispositive, they, it seems, would have

sought certiorari from the United States Court of

Appeals’ second order.

Respondents argue that the comity doctrine of Younger

v. Harris, 401 U.S. 37 (1971) prevents this court from

interfering. But this court is not seeking to enjoin state

action, it only seeks to enforce its original order, a

mandate which has gone unheeded for at least sixteen

months.

Accordingly, this court will order respondents to either

try Rivers for not more than manslaughter within ninety

days or release him.

John Feikens,

United States District Judge

Dated: Detroit. Michigan, May —, 1975.

ae pete ee

27

APPENDIX D

ORDER OF THE UNITED STATES SUPREME COURT

OCTOBER 15, 1973

LUCAS v. RIVERS, 414 U.S. 896 (1973)

William Lucas and Henry Heading, petitioners,

v.

Seanarfis Rivers

No. 73-163.

Facts and opinion. D.C.. 345 F. Supp. 718: 477 F.2d

199.

Oct. 15, 1973. On petition for writ of certiorari to the

United States Court of Appeals for the Sixth Circuit.

Motion to dispense with printing respondent's brief in

opposition and petition for writ of certiorari granted.

Judgment vacated and case remanded to the Court of

Appeals for consideration of the question of the mootness

in light of People v. McMiller, 389 Mich. 425, 208

N.W.2d 451 (1973).

28

APPENDIX E

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(Filed December 10, 1973)

Seanarfis Rivers, Petitioner-Appellee

v.

William Lucas and The Honorable Henry Heading,

Respondents and Appellants.

No. 72-1792

Before: Weick, Miller and Lively, Circuit Judges.

The Supreme Court of the United States vacated the

judgment of this court entered on April 24, 1973 and

reported at 477 F.2d 199, and remanded the cause for

consideration of the question of mootness in the light of

People v. McMiller, 389 Mich 425, — N.W. 2d — (June

18, 1973). In its decision in People v. McMiller, supra,

the Supreme Court of Michigan declared that as a matter

of policy the State may not charge a defendant in a

criminal case who has pleaded guilty to a lesser offense

included in the indictment and thereafter successfully

appealed the judgment based on such guilty plea with 4

higher offense arising out of the same _ transaction.

Accordingly, the petitioner Rivers will now be charged

with ‘‘not more than manslaughter,’ the condition

originally prescribed by the district court as an alternative

to release from custody, and affirmed by this court.

It therefore appears that the only issue before this

court is now moot and, accordingly, the appeal in this

action is dismissed pursuant to Rule 8, Rules of the Sixth

Circuit.

ENTERED BY ORDER OF THE COURT

/s/ James A. Higgins

Clerk

29

APPENDIX F

OPINION OF THE U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT, APRIL 24, 1973

Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973)

Seanarfis Rivers. Petitioner and Appellee.

v.

William Lucas and The Honorable Henry Heading,

Respondents and Appellants.

No. 72-1792

Argued Feb. 9, 1973.

Decided Aprii 24, 1973.

Before Weick, Miller and Lively. Circuit Judges.

Lively. Circuit Judge.

This is an appeal from a District Court order which

granted a conditional writ of habeas corpus to Seanarfis

Rivers who was in custody of the State of Michigan. The

condition is that the prisoner be released unless the State

shall reduce the charge against him to ‘‘not more than

manslaughter."" The opinion of the District Court is

reported at 345 F. Supp. 718. Pursuant to Rule 10(d),

Federal Rules of Appellate Procedure. the parties filed

the following agreed statement of the case:

On October 19. 1970, an Information was filed in the

Recorder's Court for the City of Detroit charging

Petitioner-Appellee with the offense of Murder in the

First Degree in Perpetration of a Larceny (Michigan

Compiled Laws os [sic] 1948, 750.316 as amended

by PA 1969 No. 331). Petitioner-Appellee was not

charged with being the actual killer. On January 19.

30

1971, Petitioner-Appellee entered a plea of guilty to the

offense of Manslaughter, which plea was accepted

by the Recorder's Court. On February 9, 1971,

Petitioner-Appellee was sentenced to be committed to the

State Correction Commission to serve not less than

fourteen years nor more than fifteen years.

On June 28, 1971 the Michigan trial court denied

Petitioner-Appellee’s Motion to Set Aside Plea of Guilty

and for a New Trial and on that same date

Petitioner-Appellee filed a Claim of Appeal in the

Michigan Court of Appeals.

On March 23, 1972, the Michigan Court of Appeals

ordered the conviction of Petitioner-Appellee reversed

and remanded the cause to the Recorder’s Court for

further proceedings. The sole authority cited in support

of the Order by the Michigan Court of Appeals was the

case Of People v. Jaworski, 387 Mich. 21, 194 N.W. 2d

868 (1972).

On April 18, 1972, Petitioner-Appellee filed with the

Recorder's Court a Motion to Quash Information or to

Reduce Charge to Manslaughter. This motion was denied

by the Recorder's Court on May 11, 1972. On May 12,

1972 Petitioner-Appellee filed in the Michigan Court of

Appeals an Emergency Application for Leave to Appeal”

from the denial of that motion and for Immediate

Consideration and Motion for Stay of that Order and for

Immediate Consideration. The Michigan Court of Appeals

on May 15, 1972 granted Immediate Consideration and

denied both the Stay and Leave to Appeal. On May 12,

1972 Petitioner-Appellee also filed in the Michigan

Supreme Court Emergency Application for Leave to

Appeal from that Order of the trial court, Motion to

Bypass the Court of Appeals of Michigan, Motion for

Immediate Consideration and Motion for Stay of

Proceedings. On May 18, 1972, the Michigan

ee

31

Supreme Court granted Immediate Consideration and

bypass and denied Leave to Appeal and Stay of

Proceedings.

On May 23, 1972, Petitioner-Appellee filed Application

for a Writ of Habeas Corpus in the United States District

Court. Eastern District of Michigan. Southern Division.

pursuant to which the Honorable John Feikens on June

14, 1972 ordered that the appellant be released from

custody unless the State reduces the charge on the

Information to no more than Manslaughter.

From the Order of the U.S. District Court. the

respondents named therein filed their Notice of Appeal to

the U. S. Court of Appeals for the Sixth Circuit on July

3, 1972.

On July 13, 1972, Petitioner-Appellee filed a Motion to

Set Bond Pending Trial in the Recorder's Court for the

City of Detroit which was denied on July {8. 1972. On

July 21, 1972 Petitioner-Appellee filed in the Michigan

Court of Appeals Emergency Application for Leave to

Appeal from that Order and for Immediate Consideration

and to Set Bond. On July 27th the Michigan Court of

Appeals granted the Motion for Immediate Consideration

and denied the Motion to Set Bond and the Application

for Leave to Appeal. On August 3, 1972

Petitioner-Appellee filed in the Michigan Supreme Court

Emergency Application for Leave to Appeal, for

Immediate Consideration. and to Set Bond. On August

24, 1972 the Michigan Supreme Court granted the

Emergency Application for Leave to Appeal and ordered

Petitioner-Appellee admitted to bail pending a

determination of the instant appeal.

The appellants ask that we reconsider and overrule

Mullreed v. Kropp. 425 F.2d 1095 (6th Cir. 1970).

wherein we directed that habeas corpus relief be

granted a prisoner being held under circumstances

32

similar to those in this case. The facts in the two cases

are not exactly parallel in that the petitioner Mullreed, at

the time of his plea, was charged with two offenses in

separate counts, and pled guilty to the lesser one;

whereas appellee Rivers was charged in a single count

with one offense and was permitted to plead to a lesser

included offense. In Muilreed this Court heid that the

constitutional prohibition against double jeopardy would

be violated if one who successfully appeaied from a guilty

plea to the lesser charge were permitted to be tried

subsequently on the more serious charge contained in the

indictment.

The original not guilty plea of Mullreed to the more

serious charge remained in effect at the time of his guilty

plea to the lesser charge was accepted. The crucial factor

on the issue of double jeopardy was held to be ‘‘the

State’s relinquishment of its rights, or its refusal, to

prosecute on count one’’ (the more serious charge). 425

F.2d at 1099. However, the addition of the second count

charging the lesser offense was not essential to the

outcome, since the charges arose out of the same

occurrence and the lesser offense of unarmed robbery

was necessarily included in the charge of armed robbery.

In the present case, the charge of manslaughter is a lesser

offense included in the charge of murder. Thus the

Mullreed rule applies even though appellee Rivers was

only charged with one offense.

[1] In Green v. United States, 355 U.S. 184, 78 S.Ct.

221, 2 L.Ed. 2d 199 (1957), the Supreme Court discussed

the history and development of the double jeopardy plea.

It was pointed out that a defendant can be tried a second

time for the same offense following a successful appeal

from a prior conviction. This does not constitute double

jeopardy, either on the theory that this defense is waived

Pa ee

aan le

Se ei ee

33

when the convicted person seeks to set his conviction

aside, or on the theory that his former jeopardy is

continued until all proceedings with respect to the first

trial come to an end. He may even receive a more severe

sentence on retrial. North Carolina v. Pearce, 395 U.S.

711, 89 S.Ct. 2/2, 23 L.Ed. 2d 656 (1969). The situation is

different, however, when the jury has failed to find a

defendant guilty on a more serious charge and convicted

him on a lesser one. Then, when he is successful in

overturning the conviction, he may not be put in jeopardy

again for the more serious charge. though he may be tried

again on the same less serious offense, Green v. United

States, supra, at 191. 78 S.Ct. 221. This Court held in

Mullreed that for purposes of testing a double jeopardy

plea there is no difference between the jury's refusal to

convict on the more serious charge and a court’s implicit

refusal to do so when it accepts a guilty plea to a lesser

included offense.

Shortly after Mullreed v. Kropp. supra, was

announced, the Supreme Court. per Chief Justice Burger

for a unanimous court (with one justice not participating)

rendered its decision in Price v. Georgia. 398 U.S. 323,

90 S. Ct. 1757, 26 L.Ed. 2d 300 (1970). Adopting the

continuing jeopardy theory as described in Green v.

United States. supra, the Court held that a jury’s

conviction of manslaughter implied an acquittal of the

charge of murder and the defendant could not again be

subjected to the hazard of a murder conviction following

reversal of the manslaughter conviction. The Court

emphasized that the prohibition against double jeopardy

is not one against being twice punished, but is concerned

with the risk or hazard of conviction of an offense of

which a person has been acquitted.

34

[2] We affirm that there is implicit in a court's

acceptance of a plea to an included lesser offense a

determination that the right to prosecute the defendant on

the more serious offense with which he is charged has

been relinquished. The effect of the entire transaction. for

double jeopardy purposes, is the equivalent of a jury’s

refusal to convict on the more serious charge. Only if this

is true may a defendant seek review of his conviction

without being faced with the “incredible dilemma’’ of

choosing between a legal right of appeal and the

possibility that success will revive the hazard of

conviction of a charge which the prosecution had

willingly abandoned in exchange of his plea. Mullreed v.

Kropp, supra, at 1102. The continuation principle of

jeopardy makes it possible for appellee Rivers to be tried

again for the same offense of which he was convicted by

his guilty plea (manslaughter), but his successful appeal

did not open the way for him to be once again subjected

to the risk of a prosecution for murder.

The appellants contend that Santobello v. New York.

404 U.S. 257, 92 S.Ct. 495; 30 L.Ed. 2d 427 (1971),

overruled the Court’s decision in Mullreed v. Kropp.

supra. Santobello deait with “‘plea bargaining’’ and the

rights of a defendant where the prosecution reneges on its

agreement after obtaining a guilty plea. Since the

Supreme Court remanded for consideration by the trial

court of two alternative procedures for correcting the

error, no consideration of double jeopardy was required.

In stating that the defendant would plead anew to the

original charge on two counts if the trial court should

permit him to withdraw his original guilty plea, the Court

did not say, or even intimate, that he could not plead the

constitutional prohibition against double jeopardy as a bar

35

to prosecution on the more serious of the two counts.

The language of the Supreme Court places no limitation

on the nature of the plea which a defendant in such a

situation may interpose.

[3] The appellants contend that the appellee Rivers

did not exhaust his state remedies before seeking federal

habeas corpus relief. The steps he has taken in the

Michigan courts are set forth in the statement of the case.

The only thing left for him to do in the state courts is to

submit to trial on the murder charge. Since exposure to

the risk of conviction is the very thing he is seeking to

avoid, this step is not necessary for a complete

exhaustion of state remedies where freedom from double

jeopardy is the right sought to be preserved. As District

Judge Feikens pointed out in his opinion, there is a valid

consideration of judicial economy. Even if appellee were

tried for murder and found guilty only of manslaughter, a

new trial would be necessary, because the second

jeopardy on a murder charge would not be harmless

error. Price v. Georgia, supra, at 331, 90 S.Ct. 1757.

While the Supreme Court of Michigan has not ruled on

the critical question in this case, the Court of Appeals of

Michigan has consistently refused to follow Mullreed v.

Kropp, supra.' In the instant case, after the trial court

had refused to quash the information or reduce the

charge to manslaughter, the Court of Appeals of

Michigan denied leave to appeal ‘“‘for the reason that no

persuasive basis therefor is presented to the Court.”

' E. g.. People v. Harper, 32 Mich. App. 73, 188 N.W.2d 254

(1971). where the Court said: ‘We hereby express total disagreement

with the Mullreed opinion. It ignores the importance of the plea

milieu. Compare, Ward v. Page, supra. We agree, rather. with every

contention raised on behalf of the State of Michigan in Mullreed and

think the Sixth Circuit's opinion should not and need not be followed

in Michigan .. ."* 188 N.W. 2d at 258.

36

Thereafter, the Supreme Court of Michigan granted

bypass and denied leave to appeal without giving a

reason. The appellee has presented his grievance to the

courts of Michigan and they have had an opportunity to

adjudicate his claim of a constitutional violation. This is

sufficient to satisfy the requirement of 28 U.S.C. §2254

that every available state remedy shall be exhausted. Fay

v. Noia, 372 U.S. 391; 83 S. Ct. 822, 9 L.Ed. 2d 837

(1963).

[4. 5} The appellants also maintain that since appellee

has not been convicted he is not being held *‘pursuant to

the judgment of a State Court’’ as required by Section

2254. This argument misconceives the nature of habeas

corpus. which is an original civil remedy to secure the

petitioner's liberty, not another state of the previous

criminal proceedings. Fay v. Noia, supra, at 423-424, 83

S. Ct. 822. Appellee is being held pursuant to a judgment

of the Recorder’s Court of Detroit which denied his

motion to quash or reduce the charge to manslaughter.

The statute does not require a final judgment of

conviction. Furthermore, it was stated in Fay v. Noia,

supra, that this statutory requirement is not jurisdictional:

**The jurisdictional prerequisite [in the lower federal

courts] is not the judgment of a state court but detention

simpliciter."’ 372 U.S. at 430, 83 S.Ct. at 844. ,

[6] It is also contended by the appellants that the

granting of habeas corpus to a state prisoner being held

for trial amounts, in effect, to issuing an injunction to

Stay State proceedings in contravention of 28 U.S.C.

§2283. The cases cited by appellants do not support their

argument, and we have found no Supreme Court decision

which holds that pretrial habeas corpus relief is the

Se ee a ee

37

equivalent of an injuction to stay proceedings in a state

court. We decline to follow Drury v. Cox. 457 F.2d 764

(9th Cir., 1972), to the extent that it equated the two

types of action.

The Court has considered the arguments of appellants

and the cases cited by them, including Ward v. Page, 424

F.2d 491 (10th Cir., 1970), cert. denied, 400 U.S. 917, 91

S. Ct. 177, 27 L.Ed 2d 157 (1970. .nd United States ex

rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970),

cert. denied, 402 U.S. 914, 91 S.Ct. 1396. 28 L.Ed. 2d

656 (1971). We continue to adhere to our decision in

Mullreed v. Kropp, supra.

The order of the District Court is affirmed.

APPENDIX G

MEMORANDUM OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT

JUNE 14, 1972

(Rivers v Lucas, 34. F. Supp 718 (E.D. Mich. 1972)

(Eastern District of Michigan, Southern Division)

In October of 1970, an information was filed charging

petitioner with murder in the first degree in perpetration

of a larceny. On January 19, 1971, he pleaded guilty to

the lesser offense of manslaughter. When Rivers was

given a substantial prison sentence, he appealed.

In March 1972, the Court of Appeals reversed his

conviction on the ground that he had not been advised of

his right against self-incrimination, citing People v

Jaworski, 387 Mich. 21 (1972).

38

After remand, the State indicated its intention to

proceed on the original information charging murder.

Rivers moved to reduce the charge to manslaughter.

relying on the authority of Mullreed v Krupp, 425 F.2d

1095 (6th Cir. 1970). This motion was denied. Petitioner

then filed an application for leave to appeal to the

Michigan Court of Appeals, which court denied relief. He

then appealed to the Supreme Court, which court also

denied relief. Petitioner thereupon filed a petition here for

a writ of habeas corpus.

There is a clear conflict between the rulings of the

Sixth Circuit Court of Appeals and Michigan courts on

the issue raised by petitioner. In Mullreed v Kropp.

supra, the United States Court of Appeals held that when

a plea to a lesser included offense is accepted, this

constitutes a deliberate decision by the State to relinquish

its right to proceed on the greater charge and jeopardy

attaches. That court stated:

‘*‘We agree that in legal effect the first

proceeding is a nullity. The consequences of this

are to make retrial upon the same count, robbery

unarmed, entirely permissible. This is the rule of

United States v. Ball, supra, 163 U.S. 662, ...

The same would be true if this had been a jury

proceeding subsequently overturned on

constitutional grounds. Nonetheless, the holding

of Green v. United States, supra, 355 U.S. 184, 78

S.Ct. 221, 2 L.Ed. 199, is that the conviction on

the lesser. or more properly, refusal to convict on

the greater, would bar a subsequent prosecution

and sentence on the greater charge.’’ 425 F.2d at

1101.

39

The most recent pronouncement of the Michigan Court of

Appeals in People v McMiller, 38 Mich App 99 (1972).

expresses strong disagreement with that ruling:

** “We hereby express total disagreement with

the Mullreed opinion. It ignores the importance of

the plea millieu.” *’ quoting People v. Harper. 32

Mich App 73 (1911), at 100, 101.

Nonetheless, the law in this circuit is clear; the State

may not try petitioner for murder, but may proceed to

trial only on the lesser offense of manslaughter.

The State argues that to grant relief now is premature

since Rivers has not yet been tried for murder. But delay

in this case would be futile. It would thwart principles of

judicial economy to require Rivers to be tried on the

charge of murder and if convicted to exhaust his appeal

procedures again, only to return years hence on the same

issue. Therefore,

It is Ordered that the petitioner be released from

custody unless the State reduces the charge on the

information against petitioner to not more than

manslaughter.

/s/ John Feikens

United States District Judge

Dated: June 14, 1972

Detroit, Michigan

40

APPENDIX H

MICHIGAN COMPILED LAWS

750.316 First degree murder

Sec. 316. All murder which shall be perpetrated by

means of poison, or lying in wait, or any other kind of

wilful, deliberate and premeditated killing, or which shall

be committed in the perpetration, or attempt to

perpetrate any arson, rape, robbery, burglary, larceny of

any kind, extortion or kidnapping, shall be murder of the

first degree, and shall be punished by solitary

confinement at hard labor in the state prison for life.