# Opposition — Malley v. James

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 889

## Text

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JUN 20 3977

No. 76-1727

October Term, 1976

CLYDE J. MALLEY, Warden,
Petitioner,

v.

JOHNNY JAMES,
Respondent.

RESPONDENT’S BRIEF IN
OPPOSITION TO CERTIORARI

ALAN R. TARADASH

W. MICHAEL CELESTRE

Post Office Box 306

Window Rock, Arizona 86515
Telephone: 602/871-4151

DONALD B. MILLER

1712 N. Street, N.W.

Washington, D.C. 20036
Telephone: 202/785-4166

Counsel for Respondent
July, 1977

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VERGARA PRINTING CO. - SANTA FE, NEW MEXICO

TABLE OF CONTENTS

IED ocd os 56 0:06:00464660.06.008 600000080008 l
QUESTIONS PRESENTED .........cccccccccccvcceces 2
STATEMENT OF THE CASE ........ccccccccccccceess 2
REASONS FOR DENYING THE WRIT ................. 3
Es 6665-5 60546560 00050 ees eeeceesennceees 5
Th . <cccceeebnesnebeneeoececeonssbenseses Al
TABLE OF CITATIONS

Table of Cases:
Blackledge v. Perry, 417 U.S. 21 (1974) ......-.2 e008 3,5
North Carolina v, Pearce, 395 U.S. 711 (1969) .......... 3,5
State v. Baldonado, 79 N.M. 175, 441 P.2d 215

CR, Fic bc cee ecccecceecesccceseeseceseses 4
State v. James, 83 N.M. 263, 490 P.2d 1236

CRED, FEVER 6 ood vewesdecceececeeescocnccoconce 2

State v. Leck, D.C. Eddy County, New Mexico,
No. 6501 (Sept. 25, 1975) rev'd on other
grounds, State v. Leck, Court of App’s

Ma, ZAEP Gtee. 0B, ISTE) . wccccvccccccccccccccces 4
Taylor v. U.S., 475 F.2d 1121 (6th Cir. 1973)...........-.. 5
Thurman v, U.S., 423 F.2d 988 (9th Cir. 1970),

cert, denied, 400 U.S. 911 (1970) ......... ee ee eens 5
U.S. v, Anderson, 514 F.2d 583 (7th Cir. 1975) ........... 5

U.S. v. Clutterbuck, 445 F.2d 839 (9th Cir. 1971),
cert. denied, 404 U.S. 858 (1971) .. 2... . ee eee ee eee 5

Table of Cases (cont'd):
U.S. v. Jamison, 505 F.2d 407 (D.C. Cir. 1974) ........... 5
U.S. v. Johnson, 537 F.2d 1170 (4th Cir. 1976) ........... 5
U.S. v. Ruesga-Martinez, 534 F.2d 1367
GPa Se DP een ckn ve eee ReOUNs oe Keesndkesceee 5
U.S. v, Williams, 534 F.2d 119 (8th Cir. 1976),
cert, denied, -U.S.-, 50 L.Ed.2d 177 (1976)........... 5
U.S. Const.:
ek EE APY ind Aah ended pox ened tee hadeves 2
Statutes:
Section 40A-29-5, N.M.S.A. (1953 Comp.) ............. 2,4
Section 40A-29-6, N.M.S.A. (1953 Comp.) .........0.006- 2

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-1727

CLYDE J. MALLEY, Warden,
Petitioner,

v.

JOHNNY JAMES,
Respondent.

RESPONDENT’S BRIEF IN
OPPOSITION TO CERTIORARI

Respondent Johnny James respectfully submits this brief in
opposition to certiorari. This brief addresses the petition for
certiorari filed in this Court on June 6, 1977.

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 553 F.2d 59
(10th Cir. 1977). The District Court’s opinion was not reported.

2
QUESTIONS PRESENTED

1. Did the filing of a habitual offender petition against re-
spondent, only after his successful appeal and retrial, violate his
right to due process of law as guaranteed by U.S. Const. amend.
XIV?

2. Can a defendant’s sentence, which was originally two one
to five year concurrent terms, be modified after retrial to two
consecutive one to five year terms when the reason for the
modification does not appear on the record?

STATEMENT OF THE CASE

On January 21, 1971, the District Court for the Eleventh
Judicial District, State of New Mexico, sentenced respondent to
two one to five year terms following his conviction of one
count of burglary and one count of receiving stolen property

contained in cause 3539. These sentences were to run concur-
rently.

Respondent appealed these convictions to the New Mexico
Court of Appeals. That court reversed both convictions and re-
manded the case for a new trial. State v. James, 83 N.M. 263,
490 P.2d 1236 (App. 1971).

Respondent was again convicted on each of the two counts
in cause 3539 after his second trial. Thereafter, he was resen-
tenced to a one to five year term on each count. The trial court,
however, ordered these terms run consecutively.

After respondent’s second conviction and sentencing, the
district attorney filed a criminal information alleging that re-
spondent was a habitual offender under the provisions of Sec-
tions 40A-29-5 and 40A-29-4, N.M.S.A. (1953 Comp.). The
information alleged that respondent had been convicted in the
District Court for the Eleventh Judicial District of grand larceny
on October 16, 1961; breaking and entering on January 22,
1962; burglary on November 12, 1963; larceny on March 15,
1965; burglary on February 6, 1968; and burglary and receiving

3

stolen goods on February 9, 1972. R. Vol. I, pp. 31-3. Although
the same district attorney prosecuted respondent in each of his
previous trials and in his first trial on cause 3539, this was the
first time the district attorney filed a habitual offender petition
against respondent. R. Vol. I, p. 26. The State of New Mexico
made no effort to explain its reasons for increasing respondent’s
sentence only after retrial. 553 F.2d at 62.

The District Court entered its third Judgment and Sentence
in cause 3539 on March 6, 1972, following respondent’s con-
viction on the habitual offender petition. This order sentenced
respondent to life imprisonment.

REASONS FOR DENYING THE WRIT

This Court in North Carolina v. Pearce, 395 U.S. 711 (1969),
held that the due process clause protects a defendant from both
actual vindictiveness and the fear of retaliation for exercising
his right to appeal. To implement this protection this Court re-
quired that whenever the same judge imposes a more severe
sentence after retrial his reasons for doing so must affirmatively
appear upon the record. This principle was extended to prosecu-
torial conduct in Blackledge v. Perry, 417 U.S. 21 (1974).

In the instant case, as in Pearce and Blackledge, respondent’s
sentence was increased after his appeal and retrial. The court
below, in applying the standards set forth in those cases, “*con-
clude[d] that in the absence of evidence to the contrary, the
filing of the habitual criminal charge was not unrelated to his
having appealed.”” 553 F.2d at 61. As a result, that court va-
cated respondent’s life sentence.

Petitioner contends that this Court should grant certiorari to
review the decision below since that decision purportedly con-
flicts with this Court’s decisions in Pearce and Blackledge. The
main thrust of petitioner’s brief, however, is that procedural
requirements set forth in Pearce and Blackledge are inapplicable
to the instant case, since the prosecutor has a “mandatory”

4

duty to invoke the sanctions of the Habitual Offender Act. See
Section 40A-29-5 N.M.S.A. (1953 Comp.).

The mere characterization of the prosecutor’s duty as “‘man-
datory” does not prevent New Mexico’s prosecutors from
utilizing the Act’s sanctions to retaliate against a defendant for
exercising his right to appeal.

The court below, after examining State v. Baldonado, 79
N.M. 175, 441 P.2d 215 (App. 1969), found that the State’s
district attorneys do not always file an information under the
Habitual Offender Act in each instance in which it is possible to
do so. 553 F.2d at 62. Judge Mack Easley, now a Justice of the
New Mexico Supreme Court, also found that the state’s district
attorneys,

have no set procedure for filing habitual offender charges,
but in the discretion of the office, they file in an irregular
fashion with resultant procedures being discriminatory, se-
lective, arbitrary and uneven.

8. Also . .. as a part of the normal and customary practice
of the District Attorney’s office, Fifth Judicial District,
State of New Mexico and other districts as well, filing of
habitual criminal charges or the possibility of such filing is
used as a part of plea bargaining procedures. State v. Leck,
D.C. Eddy County No. 6501 (Sept. 25, 1975), rev’d on
other grounds, State v, Leck, Court of App’s No. 2289
(Nov. 18, 1975).

Appendix p. A2

The district attorney for New Mexico’s Eleventh Judicial
District chose to disregard this “mandatory” duty and failed to
invoke the sanctions of the Habitual Offerder Act against res-
pondent on five occasions (including his first trial on cause
3539). It was only after respondent appealed, was retried and
reconvicted that the prosecutor chose to comply with the “re-
quirements” of the Habitual Offender Act. The court below
‘ found that this unexplained, selective application of the Act
“constitutes an interference with [respondent’s] right of appeal

5

and is thus a violation of the due process clause of the Four-
teenth Amendment.” 553 F.2d at 62.

The decision of the court below is consistent with the de-
cisions of the other Circuit Courts which have resolved the
question. U.S. v. Johnson, 537 F.2d 1170 (4th Cir. 1970);
U.S. v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976); U.S.
vy, Anderson, 514 F.2d 583 (7th Cir. 1975); U.S. v. Jamison,
505 F.2d 407 (D.C. Cir. 1974). These courts found the prosecu-
tor’s failure to explain his reasons for the delay until after
retrial in seeking the increased sentence violated the defendent’s
right to due process.

The court below did not order the reinstatement of respon-
dent’s original sentence, two one to five concurrent terms.
Instead, that court directed the reinstatement of the consecutive
sentences respondent received after retrial. Petitioner contends
that this order “indicates a failure [by the court below] to
appreciate the principles enunciated in Pearce and its progeny.”
Petitioner’s Brief for Certiorari at 6.

The rule announced in Pearce only prevents a court from
increasing, without explanation, the length of a defendant’s
sentence at retrial. The rule does not prevent the court from
converting two concurrent sentences into consecutive sentences
so long as the total time to be served does not exceed the term
of the original sentence. Taylor v. U.S., 475 F.2d 1121 (6th Cir.
1973); U.S. v. Clutterbuck, 445 F.2d 839 (9th Cir. 1971), cert.
denied, 404 U.S. 858 (1971); Thurman y, U.S., 423 F.2d 988
(9th Cir. 1970), cert. denied, 400 U.S. 911 (1970). See also
U.S. v. Williams, 534 F.2d 119 (8th Cir. 1976), cert. denied,
—U.S.—, 50 L.Ed.2d 177 (1976).

CONCLUSION

The decision of the court below in invalidating the increase
in respondent’s sentence is consistent with this Court’s decisions
in Pearce and Blackledge. That court found that the prosecutor’s

6

unexplained delay in seeking the imposition of the increased
sentence constituted a denial of respondent’s right to due
process of law guaranteed by the Fourteenth Amendment.
For this reason, review by this Court should be denied.

Dated July, 1977.

Respectfully submitted,

ALAN R. TARADASH
W. MICHAEL CELESTRE

Post Office Box 306
Window Rock, Arizona 86515
Telephone: 602/871-4151

DONALD B. MILLER

1712 N. Street, N.W.
Washington, D.C. 20036
Telephone: 202/785-4166

Counsel for Respondent

Al

APPENDIX

IN THE DISTRICT COURT OF EDDY COUNTY
STATE OF NEW MEXICO

STATE OF NEW MEXICO, )

Plaintiff, )
vs. ) No. 6501
JAY B. LECK,

Defendant. )

DECISION OF THE COURT
The Court adopts the following

Findings of Fact

1. On November 25, 1974, following jury trial on October 9,
1974, at which a verdict of guilty with recommendation of
clemency was returned, Jay B. Leck was sentenced to not less
than one nor more than five years in Cause No. 6410, Eddy
County.

2. On November 23, 1974, Jav B. Leck, while a passenger
in a work car owned by Warton Drilling Company and used by
its employees as a crew car, discharged a .44 Magnum Ruger
Blackhawk and, as a result, took the life of Donald Lee
Eggleston.

3. On December 9, 1974, by criminal information filed in
Cause No. 6501, Eddy County, Jay B. Leck was charged with
murder in the first degree contrary to Sec. 40A-2-1, N.M.S.A..,
1953 Comp.

4. Following plea bargain procedures Jay B. Leck was
allowed to plead guilty to involuntary manslaughter contrary
to Sec. 40A-2-3 and Sec. 40A-2-3B; this was accepted by this

A2

Court on March 31, 1975, and sentence of not less than one nor
more than five years, consecutive to that same period assessed
as the sentence in Cause No. 6410, was given on May 20, 1975.

5. On May 15, 1975, by supplemental information filed in
Cause No. 6501, Jay B. Leck was charged as being a habitual
offender and on May 20, 1975, at the arraignment defendant
remained mute, allowing the Court to enter a plea of not guilty
to that charge.

6. On July 9, 1975, at the hearing on the habitual offender
charge, Jay B. Leck waived his right to a trial by jury on the
issue of identity in Cause Nos. 6410 and 6501 and stipulatea
he was the same person charged in both those matters. This
waiver and admission were accepted by the Court, no objection
being made.

7. At that hearing on July 9, 1975, by testimony of David L.
Hoglund, Assistant District Attorney, Fifth Judicial District,
State of New Mexico, it was developed that this District Attor-
ney’s office, and other Districts as well, have no set procedure
for filing habitual offender charges, but in the discretion of the
office, they file in an irregular fashion with resultant procedures
being discriminatory, selective, arbitrary and uneven.

8. Also by testimony of David L. Hoglund it was developed
that as a part of the normal and customary practice of the Dis-
trict Attorney’s office, Fifth Judicial District, State of New
Mexico and other Districts as well, filing of habitual criminai
charges or the possibility of such filing is used as a part of plea
bargaining procedures.

9. By Mr. Hoglund’s testimony it was further developed that
in other capital cases filed by his office involving the same
capital charge as initially filed against Jay B. Leck in Cause No.
6501, defendants were allowed to plead to reduced charges
following plea bargaining proceedings, and as part of the plea
and disposition agreements in those other cases it was agreed
the District Attorney would not file habitual offender charges.

The Court adopts the following

A3

Conclusions of Law

1. Defendent Jay B. Leck has standing in Cause No. 6501 to
challenge the Habitual Criminal Act of the State of New Mexico,
Sec. 40A-29-5 et seq., N.M.S.A., 1953 Comp., as being uncon-
stitutional on its face and as applied in this cause.

2. The New Mexico Habitual Criminal Act, Sec. 40A-29-5 et
seq., N.M.S.A., 1953 Comp., is unconstitutional on its face as
being contrary to the cruel and unusual punishments clauses of
U. S. CONST., Amendment VIII, and N. M. CONST., Art. II,
Sec. 13.

3. The New Mexico Habitual Criminal Act is unconstitutional
on its face as being contrary to the equal protection clauses of
U. S. CONST., Amendment XIV, Sec. 1, and N. M. CONST.,
Art. II, Sec. 18.

4. The New Mexico Habitual Criminal Act as applied in
Cause No. 6501 is unconstitutional as being contrary to the
cruel and unusual punishments clauses of U. S. CONST.,
Amendment VIII, and N. M. CONST., Art. II, Sec. 13, and the
equal protection clauses of U. S. CONST., Amendment XIV,
Sec. 1, and N. M. CONST., Art. It, Sec. 18.

All Requested Findings of Fact and Conclusions of Law sub-
mitted by the parties hereto at variance herewith and not
adopted herein are hereby refused.

s/ MACK EASLEY

DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1962%3A2. Public record. Not legal advice.