# Appendix — Bordenkircher v. Hayes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1729%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 434 U.S. 357 ## Text | JUL 18 1977 APPENDIX ' MICHAEL RODAK, JR., CLERK SUPREME COURT OF THE UNITED STATES October Term, 1976 No. 76-1334 DONALD BORDENKIRCHER, Superintendent Kentucky State Penitentiary Petitioner PAUL LEWIS HAYES Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT eee PETITION FOR CERTIORARI FILED MARCH 28, 1977 CERTIORARI GRANTED JUNE 6, 1977 SUPREME COURT OF THE UNITED STATES October Term, 1975 NO. 76-1334 DONALD BORDENKIRCHER, SUPERINTENDENT KENTUCKY STATE PENITENTIARY Petitioner -V.. PAUL LEWIS HAYES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT INDEX Page Relevant Docket Entries -.........----.------- 1,2 United States District Court for Eastern District of Kentucky ---......--..-~--- 1,2 United States Court of Appeals for SP EE GED eecceececerecccccocccccece 3, 4 ii INDEX (Continued) Page Index to Transcript of Record in Fayette Circuit Court _._____- a Transcript of Record, gk SEES Ee nese 7-36 Transcript of Evidence, Fayette Circuit Court a Memorandum Opinion of Court of Appeals of Kentucky, Affirming (March 1, 1974) _.._____ 53-57 Petition for Writ of Habeas Corpus in United States District Court for Eastern District of Kentucky (June 11, 1975) _.._._.______ __58-62 Memorandum in Support of Petition for Writ of Habeas Corpus, U.S. District Court for Eastern District of Kentucky _........________ 63-69 Magistrate’s Report and Recommendation i | § ate arse Order of U.S. Magistrate granting petitioner leave to proceed in forma pauperis and the tendered petition for writ of habeas corpus be filed (June 11, 1975) _..._..__............ % INDEX (Continued) Page Order by U.S. District Court confirming and adopting Magistrate’s Report and Recommenda- tion; denying petitioner's Petition for Writ of Habeas Corpus; Dismissing cause (September 9, 1975) __- -- tA OEE, Petitioner's Notice of Appeal from Order of US. District Court (October 9, 1975) -....-.-------- 76 Petitioner's Application for Certificate of Probable Cause (October 9, 1975) - — ~~ 5 Order by U.S. District Court denying appeal and declining to issue Certificate of Probable Cause December 19, 1975) _......-.. 79-81 Order by U.S. Court of Appeals for the Sixth Circuit granting Petitioner’s application for Certificate of Probable Cause (March 15, 1976) .. 82 Order by U.S. Court of Appeals for the Sixth Circuit Reversing Dismissal of Petition (December 30, 1976) _._.._ _.__-._. 83-69 Motion for Stay of Mandate (January 25, 1977) __ 90, 91 Order Staying Mandate (February 2, 1977) ..... 92 RELEVANT DOCKET ENTRIES UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY Proceedings Date 1975 6-11 Order filed and entered; Petitioner granted leave to proceed in forma pauperis; Petition for Writ of Habeas Corpus heretofore tendered ordered filed. Copies as noted. 6-11 Petition for Writ of Habeas Corpus with affidavit in support thereof filed. (Copies of record on file with Court of Appeals of Kentucky ) 6-11 Magistrate’s Report and Recommendation filed. Copies as noted. 9 9 Order filed and entered; Magistrate’s Report and Recommendation heretofore filed be and the same is adopted, confirmed, approved, allowed and established as and for the Court’s Findings of Fact and Conclusions of Law; Petitioner’s Petition for Writ of Habeas Corpus be and the same is denied; Cause is hereby dismissed. Copies as noted with notice of entry given. 10- 9 12-19 2 Petitioner’s Notice of Appeal filed with Application for Certificate of Probable Cause. Order filed and entered: Court specifically finds that the appeal sought herein is frivolous, is not taken in good faith, and does not present a sub- Stantial question, and is denied and the Court de- clines to issue a Certificate of Probable Cause. Copies as noted. 3 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CASE NO. 76-1409 DATE 1976 3-15 47 5-17 5-17 6-14 6-14 10-26 11-18 12-20 12-30 12-30 FILING—PROCEEDINGS Order granting certificate of probable cause. Certified Record filed; cause docketed Brief for Petitioner-Appellant Proof of Service for Brief for Petitioner-Appellant Brief for Respondent-Appellee Proof of Service for Brief for Respondent-Appellee Notice for oral argument Cause argued and submitted (Before: Peck, McCree and Lively, JJ.) Motion for leave to file supplemental citation of authority. Dismissal of petition reversed and case remanded with instructions to order petitioner’s discharge except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument Opinion by McCree, J. 1977 1-25 2- 2 3- 1 3- 1 3-25 3-29 4 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Motion for stay of mandate Order staying mandate thirty days Motion for extension of time for stay of mandate Opposition to Appellee’s motion for extension of time for stay of mandate Notice of filing petition for writ of certiorari Certified copy of order of Supreme Court granting certiorari on 3-28-77 5 FAYETTE CIRCUIT COURT THE COMMONWEALTH OF KENTUCKY Plaintiff vs: INDEX No. 73-C-26 and 73-C-29 PAUL LEWIS HAYES Defendant Pages PUES eR PR > X9 1192] Yes. By a jury? Yes. You had a lawyer trying your case for you, did you not? Yes. And, then, on November 20, 1972, when you were ar- rested at the Pic-Pac market and charged with utter- ing this forged instrument, which the Court and jury has already found you guilty of, in the pre sence of Larry Wayne Frazier and taken to court, isn’t it a fact that again you were appointed an at- torney : Yes. And, this attorney was present when you came to cop-out court, wasn't he? Yes. Will you tell the jury what cop-out court is? No, you tell them, I don’t know .. . You tell them. Isn't it a fact that you were aware that cop-out court is the time when the prosecutor, the defense lawyer, the defendant, and the Clerk - like Mr. True - meet together not in the Judge’s presence and before any jury is called and before any witnesses are sub- poenaed, and the prosecutor makes a recommenda- 42 tion to the defendant, what he will recommend if the defendant intends to plead guilty to save the jury's time, the witnesses’ time, and the court’s time in coming to trial, isn’t that right? 1193} A. No. X10 All right, what is cop-out court, if that is not right? A. Copout to me is that...uh... you offered me a five-year plea and you told me if I didn’t take five years that you would indict me on the habitual cri- minal. That is what you done. X11 All right, was the Judge there? A. No. X12 Was the jury there’ A. No. X13 Was your lawyer there’ A. That’s right, yes. X14 And, I was there? A Yes. X15 And, | made these statements to you all both in the presence of both of you, didn’t I? A No. X16 I didn’t talk to you privately, did I? A. No. ne ET SS A 49 X17 Your lawyer, Mr. Wake, was there during the en- tire time, wasn’t he? A. That's right. X18 And, then, I left you and Mr. Wake alone to discuss it by yourself - by yourselves in a room by your- selves ? A. No, no, no. X19 You and Mr. Wake did not discuss this matter by yourselves | 194} in a room and | left and, then, later | came back and asked what you wanted to do? A. No, you walked out of the room and you threatened me with the habitual criminal, you know, and - X20 And, then I walked out of the room, didn’t I? A. You walked out of the room. X21 And, | told you that the law was that there was a habitual criminal act that I had to place against you? A. No, you did not tell me that; you told me that you was indicting me on the “hibitch” if I didn’t take the five-year plea. That is what you told me. X22 Isn't it a fact that I told you at that time if you did not intend to plea guilty to five years for this charge and that they had caught you inside and that your accomplice had made a statement against you - isn’t 50 it a fact that I told you at that time that if you did not intend to save the court the inconvenience and necessity of a trial and taking up this time that I in- tended to return to the grand jury and ask them to indict you based upon these prior felony convictions ? A. No. X23! did not tel) you that I was going to return to the grand jury’ A. No. X24 | told you out of my own - A. You told me that you was going to indict me - you told |195| me you was going to indict me on the habitual criminal and you called me back over here the fol- lowing week on a Friday and! .. . answered the in- dictment on the habitual criminal. That was it. That was all that you told me. X25 You were arraigned on that charge that the grand jury had brought against you, weren't you? A. On the “hibitch.” X26 And, you were asked how you pled to the charge, weren't you: A. Yes. 5! X27 And, at that time, you had a lawyer present too, didn’t you: A. Y@s. X28 In fact, you have had a lawyer throughout these pro- ceedings, haven't you ’ A. Sure, yeh. X29 Now, when you first went to the Reformatory in 1962, you were eighteen years old, is that right? A. Right. X30 And, at that time, did you learn what the habitual criminal was? A. Yeh, I learned that, yeh. X31 What is the name that the people have at the peni- tentiary for the habitual criminal ’ A. The “hibitch.” | 196} X32 The “hibitch,” is that right’ A. Yes, the “hibitch.” X33 So, you knew in 1962 what the effects of the habitual criminal were A. No. X34 But, you - A (Cont'd) Them guys coming in there with six and 52 seven times. No, I did not know what - I did not know that three convictions was a habitual criminal. X35 But, some were coming in that had been convicted of a habitual criminal, wasn’t there? A. Yeh, six times... six-time losers. 436 Some of them had been coming in there, hadn't there ? A. No, no, they was convicted on a six-time loser .. . in 1962. X37 \ ou have been aware that there is such a charge since 1962, haven’t you? A. Habitual criminal, yes. X38 And, that was before the robbery and before the forgery, wasn't it’ A. That was ~ that was...uh... before the - you said before the robhery and after-? X39 And before the forgery ’ A. No. MR. BAGBY: That's all. THE COURT: Anything further, Mr. Todd? MR. TODD: I have nothing further. 53 RENDERED: MARCH 1, 1974 COURT OF APPEALS OF KENTUCKY FILE NO. 73-766 PAUL LEWIS HAYES Appellant Vv. APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES PARK, JR., JUDGE Indictment NOS. 73-C-26, 73-C-29 COMMONWEALTH OF KENTUCKY Appellee MEMORANDUM OPINION OF THE COURT BY JUSTICE JONES AFFIRMING (Not be be cited as authority) Paul Lewis Hayes was convicted in the Fayette Cir- cuit Court on a two-count indictment, charging him in Count No. 1 with the principal offense of uttering a forged instrument, under KRS 434.130, and in Count No. 2 of having been convicted of two prior felonies, under KRS 431.190. The trial court first tried Hayes on the principal offense of uttering a forgery, and then he was tried under the habitual criminal statute. The Jury found him guilty on both counts and fixed his punishment at confinement in the state penitentiary for life. Upon this appeal, Hayes contends: (1) the trial court erred in fail- ing to direct a verdict in his behalf, he contending that the evidence was insufficient to support the conviction; (2) the trial court erred in failing to instruct the jury as to 54 the requirement of corroboration of the testimony of an accomplice; (3) he was denied due process and equal pro- tection of the law by the habitual criminal conviction because the mandatory life sentence required by the sta- tute is cruel and unusual punishment. We have examined the evidence, and we are con- vineed that it establishes that appellant participated in the crimes with which he is charged. The Commonwealth proved that appellant presented a check to the Pic Pac grocery: that the check presented was stolen from Brown Machine Works; and that the check did not bear an au- thorized signature. Thus there was an inference that Hayes either had forged the unauthorized signature or knew it to have been forged It was incumbent on him to satisfactorily explain the uttering or the forgery. In Smith v. Commonweaalth, Ky., 307 S.W.2d 201, (1957), we stated: “When the evidence shows the name attached to the instrument has been forged. the inference arises that the person who uttered it as genuine either forged the instrument or knew it to be forged, and unless the uttering or forgery is ex- plained satisfactorily, the presumption becomes conclusive.” Smith v. Commonwealth, supra, 203. Appellant's next contention, that the trial court should have given an instruction as to the requirement of corroboration of an accomplice’s testimony, is wholly without merit. Appellant failed to object to the instruc- tions in the trial court The failure constituted a valid waiver so as to preclude Hayes from securing a reversal of his conviction upon the basis of any alleged error 35 therein. RCr 9.54: 2); Johnson v. Commonwealth, Ky., 477 S.W.2d 159 (1972); Alsip v. Commonwealth, Ky., 482 S.W.2d 571 (1972). Hayes next argues that his constitutional rights were abrided by the habitual criminal charge and by his sub- sequent conviction thereunder He complains of the lev- erage available to the Commonwealth's Attorney in de- ciding whether or not to have an accused indicted under the Habitual Criminal Act, KRS 431.190. In a pre-trial conference in this case, the Common- wealth’s Attorney offered to recommend a five-year sen- tence if Hayes would plead guilty to the charge of uttering a forgery. This he refused to do although he was advised by the prosecutor that the case would be resubmitted to the grand jury for a new indictment under the Habitual Criminal! Act. Based upon our holding in Cunningham v. Commonwealth, Ky., 447 S.W.2d 18 (1969), we conclude that it was not error for the Commonwealth's Attorney to resubmit the case to the grand jury. We save said: “Assuming, however, that the Commonwealth s Attorney was still in a position, in the event Cun- ningham had then chosen to plead not guilty, to resubmit the cases to the grand jury and ask for new indictments under the Habitual Criminal Act, we are of the opinion nevertheless that this is not the kind of pressure that could be held to affect the voluntariness of a guilty plea. A person charged with a criminal offense always is under the pressure of risking » maximum sentence at the hands of the jury or the court if he does not accede to what the Commonwealth is willing to 56 recommend. The more serious the offense, the greater is the pressure, and it is even more so when the Commonwealth has a strong case. To say that the attorney for the Commonwealth could not use these advantages in discussing the terms and prospects of settlement on the basis of a guilty plea would mean simply that there could be no such settlements. We are unwilling to ac- cept that result.” Cunningham v. Commonwealth, supra, 83. Here Hayes risked the maximum sentence of life imprisonment for a sentence of five years. He cannot now complain of his bad bargain. Finally Hayes argues that a mandatory life sentence under the Habitual Criminal! Act in his case is too severe a penalty, constituting cruel and unusual punishment. In light of the previous felomes of which he had been con- victed, viz., detaining a female against her will (a lesser offense of rape), and robbery, we think the punishment is not too harsh. We have held the Habitual Criminal Act, KRS 431.190, to be constitutional. Barber v. Thomas, Ky., 355 S.W.2d 682 (1962). The punishment authorized by the statute was not wrongly or disproportionately applied to the appellant. Accordingly the judgment is affirmed. All concur, 57 ATTORNEYS FOR APPELLANT: Anthony M. Wilhoit Paul F. Isaacs Office of Public Defender 625 Leawood Drive Frankfort, Kentucky 40601 ATTORNEYS FOR APPELLEE: Ed W. Hancock Attorney General Robert L. Chenoweth Assistant Attorney General Capitol Building Frankfort, Kentucky 40601 FILED JUNE 11, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT LEXINGTON PAUL LEWIS HAYES Petitioner vs. Case No. 75-61 HENRY COWAN, WARDEN KENTUCKY STATE PENITENTIARY Respondent PETITION FOR WRIT OF HABEAS CORPUS Comes the Petitioner, with Counsel, and pursuant to Sec. 2254 of Title 28, United States Code petitions this Court tor a Writ of Habeas Corpus, and as grounds states the following: i. That he is presently incarcerated in the Kentucky State Penitentiary at Eddyville, Kentucky, on a life sen- tence imposed by Circuit Judge James Park of the Fayette County Circuit Court, Lexington, Kentucky, on the of- fense of being an habitual offender under KRS 431.190, Indictment Numbers 73-C-26, 73-C-29. This sentence was imposed on April 23, 1973. 2. That the Petitioner was found guilty by a jury after a trial pursuant to his not guilty plea. 3. That the Petitoner appealed the conviction to the Kentucky Court of Appeals, who affirmed the conviction in an opinion issued on March 1, 1974 which was not re- ported but a copy is attached to this Petition as Appen- dix I. 59 4. That the Petitioner was denied due process of law and equal protection of the law in that: a) the mandatory life sentence under Kentucky's Habitual Criminal Sta- tute, KRS 431.190 is not uniformly applied and constitutes cruel and unusual punishment; b) the indictment and conviction under the Habitual Criminal Statute was vin- dictively sought by the Commonwealth of Kentucky in this case; and c) a life sentence in Petitioner's case is so disportionate that it constitutes cruel and unusual punish- ment. 5. That the facts which support the above grounds are as follows: a) The Petitioner at his own trial testified that he personally knew of inmates with six or seven fel- onies who had never been tried as a habitual criminal. His co-defendant in this case, testified about two previous felonies or which he had heen convicted and yet he was not charged with being a habitual criminal The Ken- tucky Court of Appeals took note of the fact that not — everyone with two felony convictions had habitual crim- inal indictments sought against them (See Byrd v. Com- monwealth, Ky., 463 S.W.2d 333 (1971):b) The Petitioner was indicted by the Fayette County Grand Jury on Jan- uary 8, 1973 on the charge of uttering a forged instrument and was arraigned on that charge on January 19, 1973 at which time a pre-trial conference was set for Wednes- day, January 24, 1973. A further pre-tria! conference was sot for January 26, 1973 at the January 24th pre-trial con- ference and another attorney was assigned to the Peti- tioner. On January 29 1973 a new indictment was re- turned against the Petitioner charging him again with the Habitual Criminal Statute. The Trial Court at the beginning of the trial an- 60 nounced that the trial would be bifurcated as to the prin- cipal charge and the charge under the Recidivism Statute. At the beginning of the second phase of the trial, the Pe- titioner, himself, made known to the Trial Court his ob- jection to the manner he was indicted on the habitual criminal charge. He stated that the Commonwealth offer ed him five years to plead guilty on the principal charge and further said that if he didn’t take the five years, he would be indicted as a habitual criminal, which was never refuted by the Commonwealth. The petitioner in his tes- timony testified that his refusal to plead guilty was why he had been indicted under the habitual criminal statute, again not refuted by the Commonwealth. In fact, the As- sistant Commonwealth Attorney, Hon. Glen S. Bagby, in his questioning supported Petitioner's contention by asking the following question: Isn't it a fact that I told you at that time if you did not intend to plead guilty to five years for this charge and that they had caught you inside and that your accomplice had made a statement against you — isn’t it a fact that I told you at that time that if you did not intend to save the court the inconveni- ence and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions ? All of these uncontroverted facts establish that the Petitioner was indicted under Kentucky's Habitual Crim- inal Statute as a vindictive action by the Commonwealth because he refused to plead guilty; c) Petitioner is now twenty-nine years old and when the charge on the first felon was brought against him he was a seventeen year 61 old minor. He plead guilty to the charge and served five years and three months at the Kentucky State Reform- atory at La Grange, Kentucky. His next charge was that of robbery for which a jury gave him a sentence of five years. However, he was probated for that charge. The prior criminal record of the Petitioner is not one which Suggests that it is necessary to confine him in a penal institution for the rest of his life in order to prevent him from further commission of crime. His first offense, cer- tainly the most serious, was committed while he was a minor; the second was such that a judge granted him probation, and for the third offense, the least serious, he receives a mandatory life sentence. 6. That Petitioner has not filed any Motions pursuant to RCr 11.42 in Kentucky's Court, nor other Petition for Writ of Habeas Corpus in State or Federal Court, or any Petitions for Writ of Certiorari in the United States Su- preme Court. A Notice of Appeal to the Kentucky Court of Appeals and outlined in paragraph 3. 7. That all the grounds set forth in paragraph 4 and the facts set forth in paragraph 5 were raised in Petition- er’s appeal to the Kentucky Court of Appeals and were discussed in their Opinion. 8. That he was represented at arraignment by both A. Norrie Wake, 101 N. Limestone Street, Lexington, Kentucky 40507 and William A. Todd, 145 Market St., Lexington, Kentucky 40507; that Mr. Todd also represent- ed Petitioner at trial. That the Petitioner was represented on appeal and in this action by Paul F. Isaacs, 625 Lea- wood Drive, Frankfort, Kentucky 40601. That based on the allegations set out above, the Pe- 62 titioner respectfully prays that this Court issue a Writ of Habeas Corpus in this action. ‘s' PAUL LEWIS HAYES — —— — —_—_ — -—-— Petiti Paul Lewis Hayes, being first sworn under oath, presents that he has subscribed to the foregoing petition and does state that the infformation therein is true and correct to the best of his knowledge and belief. ‘s PAUL LEWIS HAYES, Affiant Subscribed and sworn to before me this 29 day of Jan., 1975. s/ H. R. PATTERSON Notary Public My Commission Expires: 12-22-78. /s/ PAUL F. ISAACS Assistant Public Defender 625 Leawood Drive Frankfort, Kentucky 40601 Counsel for Petitioner 63 UNITED STATES DISTRICT COURT EASTERN DISTRICT PAUL LEWIS HAYES Petitioner vs. Case No . HENRY COWAN, Warden KENTUCKY STATE PENITENTIARY Respondent MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS L. THE MANDATORY LIFE SENTENCE REQUIRED BY THE HABITUAL CRIMINAL STATUTE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AS NOT UNI- FORMLY APPLIED. It should be noted that since the death penalty was struck down in Furman v. Georgia, 408 US 238, 92 S. Ct. 2726, 33 LEd 2d 346 (1973), and at the time of Petition- er’s conviction, Kentucky had only two other crimes with mandatory life sentences — Murder, KRS 435.010, and Rape of a Child under Twelve, KRS 435.080. In all other crimes, the jury is given discretion in determining the degree of the sentence in terms of years or life. Also, un- der Kentucky's Habitual Criminal Statute, KRS 431.190, the nature of the previous felonies is not taken into con- sideration. Three nonviolent felonies can result in a life sentence the same as three violent crimes. The Furman, supra, case established as one of the criteria for prohibit- 64 ing the death penalty that the sentence was not uniformly applied to all those subject to that penalty. As Mr. Justice Stewart said: These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968,"" many just as rep rehensible as these, the petitioners are among a Ca- priciously selected random handful upon whom the sentence of death has in fact been imposed.” * * * * * I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sen- tence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. Id. at pp. 309, 310. The imposition of the mandatory life sentence under the Habitual Criminal Statute is also randomly applied in Kentucky, as the facts set forth in the Petition for a Writ of Habeas Corpus establish. Since the Habitual Criminal Statute is used randomly by Prosecutors without any guidelines or standards, it constitutes cruel and unusual punishment. One of the Furman, supra tests is the fairness and uniformity by which the punishment is applied. The procedures pre- valent in Kentucky and followed in this case of arbitrarily seeking indictments for being a habitual criminal against some defendants and not for others constitute cruel and unusual punishment. The Eighth Amendment prohibi- tion against cruel and unusua! punishment incorporates the equal protection clause of the Fourteenth Amendment and requires that punishment be administered uniformly. 65 The life sentence given the Appellant in this case cer- tainly violate the Furman, supra standards and should be set aside. 11 THE COMMONWEALH VINDICTIVELY SOUGHT AN INDICTMENT UNDER THE HABITUAL CRIMINAL STATUTE BECAUSE THE APPELLANT REFUSED TO PLEAD GUILTY. This case illustrates the sordid affair plea bargaining can become if courts refuse to exercise any control over the heavy-handed tactics of prosecutors. The Petitioner merely maintained his innocence during the plea bargain- ing session and insisted on his right to a jury trial and because he chose to exercise his constitutional rights, the Commonwealth sought an indictment under Kentucky's recidivism statute. The procedures employed in this case are so blatantly vindictive as to violate due process as set forth in Pearce v. North Carolina, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The threat of prosecution for being a habitual criminal should not be allowed to exist as a cudgel to coerce a man who maintains his innocence to enter a plea of guilty. Pearce v. North Carolina, supra, clearly sets forth the principle that vindictiveness by a court against a defendant exercising, in that case not a constitutional right but a statutory right, his right to ap- peal denies that defendant due process of law and this same principle was applied to county attorneys in Sefcheck v. Brewer, 302 F. Supp. 793 (1969). Surely due process of law prohibits a Commonwealth Attorney from seeking an indictment against the Petitioner because he 06 demands a jury trial in which the maximum penalty for the present indictment was ten years and by adding the habitual criminal count increased the penalty to mate datory life imprisonment. The Petitioner submits that the concept of due process minimumly prohibits prosecu- tors from taking undue advantage over a defendant ac- cused of a crime who maintains his innocence. There should be no place in our system for vindictive prosecu- tions based solely on the defendant's insistence on his constitutional right to a jury trial. THE MANDATORY LIFE SENTENCE REQUIRED BY THE HABITUAL CRIMINAL STATUTE IS CRUEL AND UNUSUAL PUNISHMENT IN THIS CASE. In Hari v. Coiner, 483 F. 2d 136, (4th Cir. 1973), cert. denied March 18, 1974, the Fourth Circuit set forth four standards for evaluation: a) Nature of the Offense; b) legisiative purpose; c) comparison of penalty with other states: and d) comparison of penalty with other offenses with the same penalty. In that case, the Fourth Circuit held: The doctrine that an excessive sentence may be in- valid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment’s prohibition is directed not only against torture or barbarism, “but (also) against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” O’Neil v. Vermont, 144 US 323, 339 (1892) (Field, J., dissenting). 67 in Weems v. United States, 217 US 349, 367 (1910), the Court adopted Mr. Justice Field's view of the eighth amendment when it stated that it is now “a precept of justice that punishment for crime should be graduated and proportioned to offense.” In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that “punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” Weems, supra, at 368; accord, Ralph v. Warden, 438 F. 2d 786 ( 4th Cir. 1970). in his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence; and for a serious of- fence he shall be amerced according to its gravity _..” Furman, supra, at 243. While it seems settled that punishment must be pro- portioned to the offense committed, application of this principle to a particular fact situation is not without difficulty. That the proportionality concept is not static, but is a “progressive” one which “must draw its meaning from the evolving standards of de- cency that mark the progress of a iucturing society,” enhances the difficulty. Trop v. Dulles, 356 US 86, 101 (1958). Although the standard applicable under the eighth amendment is one “not susceptible to precise defini- 68 tion,” there are several obective factors which are usful in determining whether the sentence in this case is const‘tutionally disproportionate. The test to be used is a cumulative one focusing on an anlysis of the combined factors. Furman, supra, at 282 (Brennan, J., concurring). (Jd. at pp. 139-140) The Hart, supra, case then went on to analyse Dewey Hart's conviction in light of the four standards. The Petitioner was indicted and convicted of utter- ing a forgery which has a maximum penalty of ten years. K.iS 434.130. He was also indicted under Kentucky's Re- cidivism Statute which carries a mandatory life imprison- ment penalty. KRS 431.190. The two previous felonies the Petitioner had been convicted of were Detaining a Female Against Her Will in 1962 and Robbery in 1971. The nature of the principal offense and the prior offenses is one of the most important considerations in determ- ining whether the mandatory life sentence is cruel and unusual in Petitioner's case. An analysis of Petitioner's convictions reveal that the most serious offense, the first one, was committed while he was a minor. It is inter- esting to note that under Kentucky's newly adopted Penal Code. the conviction of Petitioner while he was a juvenile could not be considered toward a habitual criminal. KRS 532.080:b) Under that statute the Petitioner would not be a persistent felony offender Even if the Petitioner's first felony were taken into consideration, the most the Petitioner would receive under the new Penal Code would be twenty years. The very state which is now incarcrat- ing Petitioner for life has now rejected the mandatory provisions of their previous recidivism statute. The prior criminal record of the Petitioner is not one which suggests that it is necessary to confine him in a penal institution for the rest of his life in order to pre- vent him from further commiss.o ©! crime His first offense, certainly the most serious, was committed while he was a minor; the second was such that a judge granted him probation, and now the third offense, the least seri- ous, for which he receives a mandatory life sentence. The life sentence is so harsh and unjustifiable on any rehabilative or humane principai of treatment of criminal offenders as to constitute cruel and unusual punishment. For the reasons stated above, the Petitioner respect- fully requests that a Writ of Habeas Corpus be issued. PAUL F. ISAACS ASSISTANT PUBLIC DEFENDER 625 Leawood Drive Frankfort, Kentucky 40601 /s/ Paul F. Isaacs COUNSEL FOR PETITIONER FILED JUNE 11, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON PAUL LEWIS HAYES ._..- PETITIONER VS MAGISTRATE’S REPORT AND RECOMMENDATION HENKY COWAN, Warden, Etc. ...... RESPONDENT The petitioner, alleging that he is incarcerated in the State Penitentiary at Eddyville, has tendered for fil- ing a petition for writ of habeas corpus. He has filed therewith a motion for leave to proceed in forma pauperis, which motion is supported by an affidavit of poverty. In accordance with 28 U.S.C. §636(b), and pursuant to a General Order of this Court, the aforesaid documents have been referred to the undersigned Magistrate for himi way In his tendered pleading the petitioner alleges that his confinement is the result of his convictions, following a bifurcated trial, of the offenses of forgery and of being a habitual criminal. He contends that his conviction as a habitual criminal violates his constitutional rights in that the mandatory sentence of life imprisonment imposed upon such conviction amounts to cruel and unusual 71 punishment; in that the selective application of Ken- tucky’s habitual criminal statute causes said life sentence to amount to cruei and unusual punishment; and in that the “vindictive” application of the habitual criminal sta- tute to the petitioner violates his right to due process of law. A copy of an opinion of the Kentucky Court of Ap- peals attached to the tendered petition demonstrates that the petitioner has presented substantially identical con- tentions to the Kentucky courts by direct appeal. In the opinion of the Magistrate, the tendered peti- tion is patently without merit. As held in Oyler v. Boles, 368 U.S. 448, 451 (1962), “the constitutionality of the practice of inflicting severer criminal penalties upon ha- bitual offenders is no longer open to serious challenge”. Moreover, only in the deliberate presence of such fac- tors as race, religion or other arbitrary classification wil the courts review the exercise of prosecutorial selection and discretion, even when the exercise of such discretion results in different treatment of co-defendants originally charged with the same offenses in the same case. Oyler v. Bols, supra at page 456; United States v. Bland, 472 F. 2d 1329, 1336 (D.C. Cir. 1972), cert. denied 412 U.S. 909. There is authority for the proposition that any sen- tence, including a mandatory sentence of life imprison- ment upon conviction of being a habitual criminal, may amount to cruel and unusual punishment, if wholly dispro- portionate to the nature of the underlying offense and un- necessary to the achievement of any legitimate legislative purpose. Weems v. United States, 217 U.S. 349 (1910); Hart vy. Coiner, 483 F. 2d 136, 143 (4th Cir. 1973), cert. denied 415 U.S. 938. However, as noted by the Kentucky 72 Court of Appeals in the instant case, the convictions un- derlying the petitioner’s habitual criminal conviction were detaining a female (a lesser included offense of the charge of rape), robbery and forgery. As conceded by the peti- tioner, the subject felonies occurred during a 12 year period beginning when the petitioner was 17 years old. One convicted of violating Kentucky’s habitual criminal siatute is not thereby rendered ineligible for parole, and, in the opinion of the Magistrate, it cannot be said that it is shocking, disproportionate or unnecessary to a legiti- mate legislative purpose to require one with a record such as that admitted by the petitioner to serve a substantial period of actual incarceration and to be subject to parole supervision for the rest of his life. The petitioner's remaining complaints derive from the fact that not all Kentucky defendants having prior felony convictions are prosecuted under the state’s habi- tual criminal statute and that the petitioner was so pro secuted only upon his refusal to plead gui!ty to the sub- stantive offense of forgery, in return for a five year sen- tence. It is well settled that there is nothing unconstitu- tional, per se, in the concept of plea bargaining and that a defendant's constitutional rights are not violated by forcing him to choose between a lesser penalty, in return for the entry of a plea of guilty, as opposed to exposing himself to the risk of a greater penalty if he elects to be tried upon a plea of not guilty. Santobello v. New York, 404 U.S. 257 (1971); North Carolina y. Alford, 400 U.S. 25 (1970). If prosecutors were precluded from seeking conviction of more serious offenses following the rejec- tion by defendants of the opportunity to plead guilty to lesser offenses, the entire concept of plea bargaining 73 would be effectively destroyed, and, as noted previously herein, in the absence of some claim of invidious discrimi- nation, a defendant's rights are not violated simply be- cause a prosecutor may elect to use the leverage of an applicable habitual criminal statute against him, while not use the same leverage against other defendants. In summary, it would appear that the petitioner's position was well stated by the Kentucky Court of Ap- peals in the opinion appended to the tendered petition. As noted by that Court, the petitioner risked the maxi- mum sentence of life imprisonment for a sentence of five years. He cannot now complain of his bad bargain. The Magistrate will this day enter an Order grant- ing the petitioner leave to proceed in forma pauperis and directing that the petition for writ of habeas corpus here- tofore tendered by the petitioner be filled herein. How- ever, for those reasons discussed above, it is the Magis- trate’s recommendation that said petition be denied and that this action be dismissed. This 11th day of June, 1975. DAVID R. IRVIN em ee ee David R. Irvin, U.S. Magistrate 74 FILED JUNE 11, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON PAUL LEWIS HAYES , _.... PETITIONER VS ORDER NO. 75-61 HENRY COWAN, Warden, Etc RESPONDENT *e. © * * The petitioner having heretofore tendered for fil- img a petition for writ of habeas corpus and having filed therewith a motion for leave to proceed in forma pauperis, which motion is supported by an affidavit of poverty, it is now therefore ORDERED that the petitioner be granted leave to proceed in forma pauperis and that the petition for writ of habeas corpus heretofore tendered for filing by the petitioner be filed herein. This 11th day of June, 1975. DAVID R. IRVIN David R. Irvin, U.S. Magistrate 75 FILED SEPTEMBER 9, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON PAUL LEWIS HAYES PETITIONER VS ORDER CIVIL NO. 75-61 HENRY COWAN, Warden, Etc. _. RESPONDENT 7-2. * © The Court having considered the entire record here- in, including the Magistrate’s Report and Recommenda- tion heretofore filed herein on June 11, 1975, and being sufficiently advised; IT IS NOW THEREFORE ORDERED AND AD.- JUDGED HEREIN AS FOLLOWS: (1) That the Magistrate’s Report and Recommen- dation heretofore filed herein be and the same is hereby adopted, confirmed, approved, allowed and established as and for the Court’s Findings of Fact and Conclusions of Law herein. (2) That the petitioner's Petition for Writ of Habeas Corpus be and the same is hereby denied. (3) That this cause be and the same is hereby dis- missed. This the 9th day of September, 1975. BERNARD T. MOYNAHAN, JR. Bernard T. Moynahan, Jr., Judge 76 FILED OCTOBER 9, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON PAUL LEWIS HAYES Petitioner V. CIVIL NO. 75-461 Superintendent, Kentucky State Penitentiary, } ) ) HENRY COWAN, ) ) Respondent NOTICE OF APPEAL Notice is hereby given that the Petitioner appeals from the order in the above styled action entered on September 9, 1975 dismissing the above styled action. Respectfully submitted, PAUL F. ISAACS ASSISTANT PUBLIC DEFENDER 625 Leawood Drive Frankfort, Kentucky 40601 COUNSEL FOR PETITIONER 4é FILED OCTOBER 9, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON PAUL LEWIS HAYES ) Petitioner ) V. } HENRY COWAN, ) Superintendent, Kentucky, ) State Penitentiary, ) Respondent CIVIL NO. 75-61 APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE Pursuant to 28 U.S.C. §2253, the above-named Peti- tioner requests that he be granted a Certificate of Prob- able Cause for the appeal in the above-captioned action. Respectfully submitted, PAUL F. ISAACS ASSISTANT PUBLIC DEFENDER 625 Leawood Drive Frankfort, Kentucky 40601 COUNSEL FOR PETITIONER 78 NOTICE Please take notice that the foregoing Motion will be filed on the 9th day of October, 1975 with the Clerk of the United States District Court for the Eastern District of Kentucky at Lexington. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion has been mailed, postage prepaid to Hon. Ed W. Han- cock, Attorney General, Capitol Building, Frankfort, Ken- tucky 40601, this 9th day of October, 1975. 79 FILED DECEMBER 19, 1975 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON PAUL LEWIS HAYES ........---. PETITIONER VS. ORDER CIVIL 75-61 HENRY COWAN, Superintendent This petition for a Writ of Habeas Corpus is grounded - on the claim of petitioner that his conviction as a habi- tual criminal violates his constitutional rights in that: the mandatory sentence of life imprisonment imposed upon such conviction equates to cruel and unusual punish- ment; the selective application of Kentucky's habitual criminal statute causes said life sentence to amount to cruel and unusual punishment; and the allegedly “vin- dictive” application of the habitual criminal statute to the petitioner violates his due process of law. The claim that the mandatory life imprisonment sen- tence imposed upon one convicted of the Kentucky habi- tual criminal statute equates to cruel and unusual punish- ment is clearly without merit. As was well stated in Oyler v. Boles, 368 U.S. 448, 451 (1962): “ _. the constitutionality of the practice of inflict- U ing severe criminal penalties upon habitual offenders is no longer open to serious challenge”. Moreover, absent some arbitrary classification, the courts will abjure the review of prosecutorial discretion, albeit the exercise of such discretion may result in differ- ent treatment of co-defendants originally charged with identical offenses in the same case. Olyer v. Boles, supra at page 456. The Court observes that the convictions underlying the petitioner’s habitual criminal conviction were crimes of a most serious nature and thereby concludes that the sentence received upon conviction of being a habitual cri- minal was not disproportionate to the nature of the un- derlying offenses, and that the mandatory sentence im- posed was necessary to the achievement of a legitimate legislative purpose. Petitioner's remaining claims emanate from the fact that not all Kentucky defendants having the requisite number of prior felony convictions are prosecuted under the state’s habitual criminal statute and that petitioner was so prosecuted only upon his refusal to plead guilty to the substantive offense of forgery in return for a five (5) vear sentence. It being well established that the concept of plea bargaining, per se, is not unconstitutional. Santobollo v. New York, 404 U.S. 257 (1970). It is apparent from a re\ ew of the record in that no encroachment was made upon petitioner’s constitutional rights, that the petitioner chose to risk the maximum sentence of life imprisonment under the Kentucky habitual criminal statute by electing to proceed to trial, rather than accepting a sentence of five (5) years in return for a plea of guilty to the forgery charge then lodged against him. The petitioner, therefore, has no cause for complaint merely because his “choice” resulted in a substantially greater sentence than would have otherwise been im- posed had he accepted to proffered “bargain”. The Court specifically finds that the appeal sought herein is frivolous, is not taken in good faith, and does not present a substantial question, and same is therefore denied and the Court declines to issue a Certificate of Probable Cause herein. This the 19th day of December, 1975. BERNARD T. MOYNAHAN, JR. Bernard T. Moynahan, Jr., Judge 82 NO. 76-8006 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PAUL LEWIS HAYES, Petitioner-Appellant v. ORDER The court treating the notice of appeal filed by the petitioner as an application for certificate of probable cause, an application having been previously made to the district court and having been denied, upon considera- tion. IT IS ORDERED that said application be and it is hereby granted. /3/ Albert J. Engel, Albert J. Engel, Circuit Judge R3 NO. 76-1409 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PAUL LEWIS HAYES. Petitioner-Appellant, APPEAL from the 7 United States District Court for the Eastern HENRY COWAN, Warden. ! District of Kentucky. Respondent-Appellee Decided and Filed December 30, 1976. Before: PECK, McCREE, and LIVELY, Circuit Judges. McCREE, Circuit Judge. This is an appeal from the denial of a petition for habeas corpus challenging con- finement based on Hayes’ conviction of being an habitual criminal under Kentucky’s recidivist statute, K R.S. $431. 190.' The district court referred the petition to a magis- ‘At the time of appellant's conviction the statute provided Conviction of felony; punishment on second and third offenses. Any person convicted a second time of felony shall be confined in the penitentiary not less than double the tume of the sentence under the first conviction; if con- victed a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall trate to determine whether leave to proceed in forma pau- pris should be granted pursuant to 28 U.S.C. §1915(a). determined that petitioner's claims were not so frivolous that im forma pauperis leave should not be granted, never- theless, he concluded that the contentions made were “patently without merit” and recommended that the peti- trate’s conclusions and, instead of issuing an order to the respondent to show cause as provided in 28 U.S.C. §2243, it dismissed the petition on the grounds that the mandatory life sentence imposed for the habitual cri- minal conviction did not constitute cruel and unusual punishment, that petitioner had not been arbitrarily selected for prosecution as an habitual criminal, and that the state prosecutor's decision to seek an habitual criminal indictment when petitioner refused to plead guilty to the charge of forgery in return for a recom- not be given for the increased penalty unless the jury finds, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state. It has since been repealed. According to §532080, which now regulates “ persistent felony offender sentencing,” the special sentence may be imposed only if, for each of two previous felony convictions, the sentence was at least one year; de- fendant was¢imprisoned under each such sentence before com- mission of the instant felony; and the offender was over eighteen years of age at the time he committed each offense. Petitioner would not have been subjected to enhanced sentenc- ing under $532.080, because none of these conditions were satisfied 85 mendation of a five-year sentence was not an unconsti- tutional implementation of plea bargaining. We issued a certificate of probable cause to permit an appeal when the district court, determining that an appeal would be frivolous and not taken in good faith, declined to do so. Because we conclude that petitioner was denied the due process of law by the prosecutor's tactics, we reverse. The facts which led to petitioner’s conviction and incarceration are not disputed* On January 8, 1973, he was indicted for forgery of a check in the amount of $88.30 by a Fayette County, Kentucky grand jury. After arraignment, a pretrial conference was held with the state prosecutor. During this conference, the prosecutor offered to recommend a five-year sentence if Hayes would plead guilty. Petitioner was warned that if he did not plead guilty, he would be charged under the habitual cri- minal statute. He refused to plead guilty, but insisted on receiving a full trial. The prosecutor thereupon re- turned to the grand jury. and. on January 29, 1973, ob tained a new indictment charging petitioner under the habitual criminal statute based upon the forgery as a third offense. Petitioner was convicted by a jury, and *These facts were admitted by the prosecutor during his cross-examination of appellant at the sentencing trial: .. . isn’t it a fact that I told you if you did not intend to save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions’ 86 on the instructions of the judge, the mandatory life sen- tence for a third offense habitual criminal was imposed.’ We recognize that plea bargaining now plays an im- portant role in our criminal justice system. In United States v. Brady, 397 U.S. 742, 752 (1970), the Supreme Court approved the practice, and stated that plea bar- gaining helps to conserve judicial and prosecutorial re- sources in cases in which there is no substantial issue about the defendant’s guilt. The Court has recognized, however, that there are limits to the tactics that a pro- secutor may use in bargaining with defendants. See Santobelio v. New York, 404 U.S. 257 (1971). The Court has not yet had an opportunity to explore fully these limits, particularly in cases such as this, “where the prosecutor .. . deliberately employ|ed his| charging... ‘We expressed our disapprovai of such practices in Cunning- ham v. Wingo, 443 F. 2d 19%, 198 n.1 (1971). In that case we noted the findings of the President’s Commission of Law En- forcement and Administration of Justice in The Challenge of Crime in a Free Society (1967): “At the same time the negotiated plea of guilty can be subject to serious abuses. In hard-pressed courts, where judge and prosecutors are unable to deal effectively with all cases presented to them, dangerous offenders may be able to manipulate the system to obtain unjustifiably lenient treatment. There are also real dangers that ex- cessive rewards will be offered to induce pleas or that will threaten to seek a harsh sentence if the 87 powers to induce a particular defendant to tender a plea of guilty.” Brady, supra, at 751 n.8. But it is clear that the legitimate purposes of plea bargaining are not served if a prosecutor abuses his powers in order to coerce an. renee defendant into foregoing his constitutional right ) ' The Supreme Court has held that defendants who assert procedural! rights must be treated in a way that avoids any suggestion of vindictive or retaliatory motive. In North Carolina v. Pearce, 395 U.S. 711 (1969), the Court held that a defendant may not be subjected to a more severe penalty on retrial after a successful col- lateral attack against a conviction. The Court reasoned that due process requires that a defendant be free from fear of retaliatory action when he asserts procedural rights. Therefore a defendant may not be dealt with more harshiy on retrial unless the permissible reasons therefor affirmativly appear. In Blackledge v. Perry, 417 U.S. 21 ( 1974), the Court applied the rule expressed in Pearce to protect defen- dants from the vindictive exercise of a prosecutor's dis- cretion. In that case, a defendant in 4 misdemeanor prosecution had asserted his right to a trial de novo on appeal. Before the new trial, the prosecutor obtained a felony indictment against the defendant. The Court held that this tactic, if allowed, would deter defendants from asserting their procedural rights. The Court emphasized that the prosecution should not be allowed to behave in a manner that even suggests a retaliatory motive. The concerns expressed in Blackledge have per- suaded several lower courts to limit the prosecutor’s dis- &8 cretion in related situations. In United States v. Jamison, 505 F. 2d 407 (D.C. Cir. 1974), the court reversed a con- viction of first degree murder obtained after the defen- dants had been granted a mistrial during an earlier trial based on an indictment for second degree murder. In United States v. DeMarco, 401 F. Supp. 505 (C.D. Cal. 1975), the court refused to allow prosecution of an in- dictment obtained after a defendant had asserted his right to a change of venue of a trial on an indictment charging less serious offenses. In United States v. Ruesga- Martinez, 534 F. 2d 1367 (9th Cir. 1976), the court held that a defendant cannot be tried on a felony indictment after he has refused to plead guilty to a misdemeanor, if no justification of the increase in severity of the charges is offered. See also United States v. Gerard, 491 F 2d 1300 (9th Cir. 1974); United States v. Butler, 515 F. Supp. 394 (D. Conn. 1976); Sefchek v. Brewer, 301 F. Supp. 793 (D. Iowa 1969). We hold that a similar potential for impermissible vindictiveness exists when a prosecutor is allowed to bring an habitual offender indictment against a defendant who has refused to plead guilty to an indictment for the same unenhanced substantive offense. In this case the prosecutor does not assert that any event occurred be- tween the issuance of the first indictment and the issu- ance of the second to influence his decision except peti- tioner’s insistence upon his right to trial. There is no indication that the prosecutor, had he thought such an indictment proper, could not have included the habitual criminal charges in the original indictment. The Commonwealth urges that the entire concept of plea bargaining will be destroyed if prosecutors are not allowed to seek convictions on more serious charges if defendants refuse to plead guilty. We do not agree. Al- though a prosecutor may in the course of plea negotia- tions offer a defendant concessions relating to prosecution under an existing indictment, see United States ex rel. William v. McMann, 436 F. 2d 103 2d Cir. 1970), cert. denied, 402 U.S. 914 (1971), he may not threaten a de- fendant with the consequence that more severe charges may be brought if he insists on going to trial When a prosecutor obtains an indictment less severe than the facts known to him at the time might permit, he makes a discretionary determination that the interests of the state are served by not seeking more serious charges. Cf. United States v. Johnson, 537 F. 2d 1170 (4th Cir. 1976). Accordingly, if after plea negotiations fail, he then pro- cures an indictment charging a more serious crime, a strong inference is created that the only reason for the more serious charges is vindictiveness. Under these cir- cumstances, the prosecutor should be required to justify his action. In this case, a vindictive motive need not be inferred. The prosecutor has admitted it. Therefore we hold that due process has been of- fended by placing petitioner in fear of retaliatory action for insisting upon his constitutional! right to stand trial. Accordingly, the dismissal of the petition is reversed and the case is remanded with instructions to order petition- er’s discharge except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument. 90 UNITE DSTATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NO. 76-1409 PAUL LEWIS HAYES PETITIONER-APPELLANT V. MOTION FOR STAY OF MANDATE HENRY COWAN, Warden RESPONDENT-APPELLEE APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY AT LEXINGTON Respondent-Appellee, by counsel, respectfully pre- sents this application for, and moves the Court to enter, an order staying the issuance of the mandate in this case pursuant to Rule 41(b) of the Federal Rules of Appellate Procedure for thirty (30) days because it is the intention of Respondent-Appellee to make proper and timely ap plication to the Supreme Court of the United States for 91 writ of certiorari to review the decision of the Sixth Cir- cuit in the above-styled action. Respectfully submitted, ROBERT F. STEPHENS ATTORNEY GENERAL By: ROBERT L. CHENOWETH Assistant Attorney General Frankfort, Kentucky 40601 COUNSEL FOR RESPONDENT-APPELLEE NOTICE Please take notice that the foregoing Motion will be filed with the Clerk of the United States Court of Ap peals for the Sixth Circuit by mailing an original and three copies thereof this 25th day of January 1977, to be considered at the convenience of the Court. Assistant Attorney General CERTIFICATE OF SERVICE I certify that two copies of the foregoing Motion were mailed, postage prepaid, to Honorable J. Vincent Aprile, Assistant Public Defender, 625 Leawood Drive, Frankfort, Kentucky 40601 on January 25, 1977. Assistant Attorney General 92 FILED FEBRUARY 2, 1977 FOR THE SIXTH CIRCUIT NO. 76-1409 PAUL LEWIS HAYES Petitioner-Appellant V. HENRY COWAN, WARDEN Respondent-Appellee BEFORE: PECK, McCREE and LIVELY, Circuit Judges ORDER STAYING MANDATE ORDERED, That motion to stay mandate herein pending application to the Supreme Court for writ of certiorari is hereby granted and the mandate is stayed for thirty days from this date; provided that, if within such thirty days, the applicant shall file with the Clerk of this Court the certificate of the Clerk of the Supreme Court that the certiorari petition, record, and brief have been filed, the stay shall continue until the final disposi- tion of the case by the Supreme Court. Unless this con- dition is complied with within such thirty days or any extension thereof made by the Court or any judge thereof, or if the condition is complied with, then upon the filing of copy of an order denying the writ applied for, the mandate shall issue. ENTERED BY ORDER OF THE COURT /s/ John P. Hehman Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1729%3A2. Public record. Not legal advice.