Appendix — Estelle v. Carter

82-1283 [fr

D

NO. 62. JAN 81 1983

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8

E

AURKANDER . STEVAS,

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

W.J. ESTELLE, IR.,

Petitioner

V.

ALBERT H. CARTER,

Respondent

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

’ APPENDIX

JIM MATTOX

Attorney General of Texas

DOUGLAS M. BECKER

Assistant Attorney General

Acting Chief, Enforcement

Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

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APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ALBERT H. CARTER, §

Petitioner, §

8

V. 8 CIVIL ACTION

8 NO. H-80-433

W.J. ESTELLE, IR., §

Director, Texas Depart- 58

ment of Corrections, §

Respondent. §

MEMORANDUM AND ORDER

On June 13, 1980, the Court heard argument on the

respondent’s Motion to Dismiss for Failure to Exhaust

State Remedies, the petitioner's Motion for Summary

Judgment, and the petitioner’s Motion for Bail. At the

conclusion of the argument, the Court orally denied the

respondent's motion to dismiss, granted summary judg-

ment to the petitioner, and denied the motion for bail as

moot. It indicated that a written order,outlining the

reasons for the actions taken, would be

forthcoming. This is that order.

INTRODUCTION

The petitioner was convicted of embezzlement on

September 21, 1972, in Cause No. 178,126 in the 185th

Judicial District Court of Harris County, Texas. After

the jury found him guilty, evidence was submitted in-

dicating that the petitioner had been convicted of per-

jury in 1962 in the United States District Court for the

Middle District of Georgia and of embezzlement in 1969

in Cause No. 127,784 in the 174th District Court of Har-

ris County, Texas. Pursuant to the Texas Recidivist

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Act, Tex. Penal Code Ann. art. 63[now § 12.42(d)], he

was given a mandatory life sentence. The petitioner ap-

pealed and, on June 5, 1974, the Texas Court of Criminal

Appeals reversed. The conviction, the Court of Criminal

Appeals held, had been based on insufficient

evidence. Carter bv. State, 510 S.W.2d 323 (Tex. Crim.

App. 1974). Five months later, in November, 1974, the

petitioner was retried for the same offense. Although he

filed a Special Plea“ in the district court, pursuant to

Tex.Crim.Pro.Code Ann. art. 27.05, urging that his

retrial was barred because of former jeopardy, that ac-

tion was to no avail. He was reconvicted and sentenced,

once again, to life imprisonment. Nearly four years

later, in Burks v. United States, 437 U.S. 1 (1978), and

Greene v. Massey, 437 U.S. 19, 24 (1978), the United

States Supreme Court, held that the Double Jeopardy

Clause precludes a second trial once a [federal or state]

reviewing court has determined that the evidence in-

troduced at trial was insufficient to sustain the

verdict.“ Arguing that Burks, supra, and Greene,

supra, apply retroactively to his 1974 reconviction for

embezzlement, the petitioner has moved for summary

judgment and release on bail pending a ruling on the

merits. The respondent opposed the motions for sum-

mary judgment and bail and has moved to dismiss for

failure to exhaust state remedies.

EXHAUSTION OF STATE REMEDIES

The motion to dismiss will be dealt with first. The

petitioner originally sought habeas corpus relief from

this Court on December 3, 1974, in Cause No. 74-H- 1603.

styled, like the present case, Carter v. Estelle. In that

action, he attacked both his 1969 embezzlement convic-

tion, for which he had been sentenced to 7 years im-

prisonment, and his 1974 embezzleinent conviction, for

which he had been sentenced to life iinprisonment. On

July 19, 1978, approximately one month after the

Supreme Court issued its decisions in Burks, supra, and

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Greene, supra, the petitioner filed a supplemental peti-

tion in 74-H-1603, asserting for the first time that he

was entitled to habeas corpus relief because his 1974

retrial and conviction for embezzlement violated the

Double Jeopardy Clause. The respondent moved to

dismiss for failure to exhaust state remedies under

Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978),

because petitioner Carter had not raised this double

jeopardy argument in his state habeas corpus

petition. United States Magistrate Ronald J. Blask, in

a memorandum and recommendation signed August 18,

1978, recommended that the motion to dismiss be

granted and, on August 21, 1978, United States District

Court Judge Finis E. Cowan dismissed the petitioner's

application for failure to exhaust state remedies.

At this point, the case took an unusual procedural

turn. On August 31, 1978, the petitioner filed a motion

to vacate Judge Cowan's order. Noting that the peti-

tion in 74-H-1603 attacked both his 1969 embezzlement

conviction and his 1974 embezzlement conviction, the

petitioner pointed out that he had fully exhausted his

state remedies as to the former and that his double

jeopardy claim under Burks, supra, and Greene, supra,

applied only to the latter. He argued, moreover, that

dismissal of 74-H-· 160g in its entirety would prevent him

from obtaining any federal habeas corpus review of his

1969 conviction. The petitioner had filed 74-H-1603 on

December 3, 1974, some five months before he had fully

discharged the seven-year sentence associated with the

1969 conviction. Because of that, federal habeas corpus

jurisdiction over 74-H-1603 continued to exist under

Carafas v. LaVallee, 391 U.S. 243 (1968), even after May

17, 1975, when service of the seven-year sentence was

completed. It would not, however, the petitioner con-

tended, extend to any federal habeas corpus action filed

after May 17, 1975, even if that action had originally

been filed in federal court prior to that date and dismiss-

ed for failure to exhause state remedies. If justice was

to be done, the petitioner claimed, 74-H-1603 could not

be dismissed in its entirety.

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Magistrate Blask and Judge Cowan agreed. In a

memorandum and recommendation signed January 9,

1979, at 7-8, Magistrate Blask discussed the application

of the exhaustion requirement laid out in Galtieri v.

Wainwright, supra, to petitioner Carter's case:

The Galtieri rule is premised upon the principle

that, requiring exhaustion of all claims does not

‘bar the federal courthouse door’ to any

petitioner.’’ Galtieri b. Wainwright, supra, at

355. Carter's seven year challenge will, in my judg:

ment, be barred if, as the respondent suggests, the

entire petition should be dismissed. Furthermore,

this petition raises the problem of the appropriate

resolution to be made where two distinct convic-

tions arising in two separate state courts in this

County are challenged in the same action in federal

court , [I]n order to avoid the harsh consequences

engendered by dismissal of petitioner's viable seven

year challenge and yet satisfy the demands of the

exhaustion doctrine as to the issues raised in the life

sentence case, it is Recommended that the Court's

Order and Final Judgment dated August 21, 1978,

be modified as follows:

1. This cause of action be severed and

designated as C. A. No. 74-H-1603-A, incor-

porating petitioner’s independent challenge

to his 1969 seven year embezzlement convic-

tion in Cause No. 137,784 in the 174th

Judicial District Court of Harris County,

Texas, and C. A. No. 74-H-1603-B, encom-

passing petitioner's independent challenge to

his 1974 life sentence imposed in Cause No.

178,126 in the 185th Judicial District Court

of Harris County, Texas;

2. As the Court has previously adopted the

Memorandum and Recommendation of the

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undersigned that the life sentence (C.A. No.

74-H-1603-B) contains both exhausted and

unexhausted claims, said action be dismiss-

ed, without prejudice, for failure to exhaust

all available state remedies as required by

law, and

3. Petitioner's seven year challenge (C. A. No.

74-H-1603-A) be retained on the Court's

docket awaiting final disposition of the

claims raised therein.

On February 8, 1979, Judge Cowan followed this recom-

mendation, adopting Magistrate Blask's Memorandum

and Recommendation as his own.

Approximately one month later, on March 9, 1979, the

petitioner filed his state habeas corpus petition in the

185th District Court, Harris County, Texas under Cause

No. 178,126C, urging primarily the double jeopardy

claim. In his petition, he fully explained the United

States District Court's handling of his claims in

74-H-1603. A copy of Judge Cowan's order of February

8, 1979 was attached as an exhibit. The respondent

answered on April 30, 1979. On November 14, 1979 the

Texas Court of Criminal Appeals, sitting en banc,

dismissed the petition without prejudice. Its explana-

tion was as follows:

In his present application, petitioner admits that

he has an application for writ of habeas corpus pen-

ding in the United States District Court for the

Southern District of Texas, Houston Division, in an

action styled Albert H. Carter u. W.J. Estelle, Ir,

Civil Action No. 74-H-1603.

In Ex Parte Green, 548 S.W.2d 914 (Tex. Cr. App.

1977), this Court stated: A petitioner must decide

which forum he will proceed in because this Court

will not and the trial court in this state should not

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consider a petitioner's application so long as the

federal courts retain jurisdiction of the same mat-

ter. Ex Parte Powers, 487 S.W.2d 101 (Tex. Cr. App.

1972).“ See also Ex Parte McNeil, [588 S.W.2d 592

(Tex. Cr. App. 1979).

Nine days later, the petitioner moved for reconsidera-

tion of the order of dismissal. His three-page motion

and a letter accompanying it carefully and cogently ex-

plained the difference between the action dismissed by

the Court of Criminal Appeals and the action pending in

federal court. For example, the Motion for Reconsidera-

tion of Dismissal Order stated, st 1 (emphasis in

original):

This Court dismissed this action without pre-

judice solely because of a gross misunderstanding

by this Court of a single fact. In the second

paragraph of [its] dismissal order, this court stated

that ‘petitioner admits“ that he has a federal

habeas corpus action pending.

That much is true, but the pending federal action

(No. 74-H-1603-[A]) does not attack petitioner's pre-

sent conviction (i.e., cause No. 178,126 in the state

District Court). Rather, the federal habeas action

attacks only Petitioner's prior convictions (in-

cluding a federal conviction and three misdemeanor

convictions) which resulted in penal sentences

which Petitioner fully discharged many years

ago—and as to which the federal court has formally

determined that Petitioner has fully exhausted

state remedies.

On January 14, 1980, the Texas Court of Criminal Ap-

peals denied the Motion for Reconsideration without

written order.

Having failed to obtain relief in state court, the peti:

tioner filed the present action, No. H-80-433. It is, in et-

fect, the same action originally dismissed on February 8,

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1979, by Judge Cowan, as 74-H-1603-B, for failure to ex-

haust state remedies. As has been discussed, it

challenges only the 1974 embezzlement conviction. The

petitioner, it is clear, has done everything he can, short

of dismissing his federal habeas corpus attack on his

1969 embezzlement conviction, to obtain habeas corpus

relief in state court. That, however, the respondent

maintains, is not good enough. Citing Galtieri v. Wain-

wright, supra, the respondent has moved to dismiss the

petitioner's claim, once again, for failure to exhaust

state remedies.

In Galtieri u. Wainwright, supra at 355, the Fifth Cir-

cuit held, that a federal district court must dismiss

without prejudice a ‘mixed’ petition for a writ of habeas

corpus filed by a state prisoner.’’ To determine that

dismissal is not required in the present case, one needs

only to read the definition of a mixed petition provid-

ed in Galtieri v. Wainwright, supra, at 355:

A mixed'' petition is one that asserts both ex-

hausted claims and unexhausted claims that do not

fit an exception to the exhaustion doctrine; that is,

some of the claims have not been presented to the

state court system so that the custodial state has

not yet had an opportunity to correct all of the alleg-

ed constitutional errors.

The petition filed in the instant case is not a mixed“

petition, All of the claims asserted in the petition have

previously been presented to the state court

system.“ “[T]he custodial state, in the words of

Galtieri v. Wainwright, supra, has had a full, ‘‘oppor-

tunity to correct all of the alleged constitutional errors.“

The respondent contends that the petitioner could ob-

tain relief in state court by dismissing 74-H-1603-A, his

federal habeas corpus attack on his 1969 embezzlement

conviction, That may be true. Such an action, however,

is not required by Galtieri v. Wainwright, supra. It will

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not be required by this Court. First, United States

Magistrate Ronald J. Blask and United States District

Court Judge Finis E. Cowan determined almost a year

and a half ago that the petitioner’s challenge to his 1969

embezzlement conviction, 74-1603-A, need not be

dismissed to enable the petitioner to exhaust the

remedies available to him in state court to attack his

1974 conviction for embezzlement. They went to great

efforts to preserve the petitioner’s claim in 74-1603-A

and to assure that the petitioner’s claim in 74-1603-B

would, if not resolved in the petitioner’s favor in state

court, be ready to be ruled upon when refiled in federal

court. To dismiss the present action for failure to ex-

haust state remedies would be to render those efforts

useless. Second, Magistrate Blask and Judge Cowan

correctly determined that dismissal of 74-1603-A would

„bar the federal courthouse door, Galtieri u. Wain-

wright, supra, at 355, to the petitioner’s attack on his

1969 embezzlement conviction. Such a result would be

inexcusable.

Third, the failure of the Texas Court of Criminal Ap-

peals to exercise habeas corpus jurisdiction over the pre-

sent claim is, almost without question, attributable to a

factual misunderstanding, a misunderstanding which

the petitioner has made every effort to correct. The

cases which the Texas Court of Criminal Appeals relied

upon in refusing to entertain petitioner Carter’s applica-

tion for writ of habeas corpus firmly establish that the

state courts will not accept habeas corpus jurisdiction of

a case if the same case is being litigated in federal

court. In Ex parte Powers, supra, at 102 (emphasis add-

ed), the Texas Court of Criminal Appeals said that the,

application for writ of habeas corpus was dismissed ...

for the reason that [the federal courts] had retained

jurisdiction of this case. In Ex parte Green, supra, at

916 (emphasis added), it said. this Court will not, and a

trial court in this State should not, consider a

petitioner’s application so long as the federal courts re-

tain jurisdiction of the same matter In Ex parte

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McNeil, supra, at 593 (emphasis added), the court refus-

ed to exercise its jurisdiction because the petitioner had

pending in federal court an application for a writ of

habeas corpus seeking the same relief that he seeks

here. That was not the case with the application that

petitioner Carter had pending in federal court. As

Magistate Blask and Judge Cowan correctly deter-

mined, the petition before the Texas Court of Criminal

Appeals and the petition pending in federal court involv-

ed, two distinct convictions arising in two separate

state courts.“ Memorandum and Recommendation

signed January 9, 1979, at 7 (Blask, Magistrate),

adopted, Order of February 8, 1979 (Cowan, J.). The

Court of Criminal Appeals, it can be seen, failed to

understand the facts. That is unfortunate, to say the

least, but it is not the petitioner’s fault. See Petition for

Writ of Habeas Corpus and to Set Bail and exhibits

thereto (filed March 9, 1979); Motion for Reconsidera-

tion of Dismissal Order and accompanying letter (signed

November 23, 1979). It cannot, moreover, prevent this

Court from reviewing the petitioner’s claim. See Smith

v. Digmon, 434 U.S. 332 (1978); Carr v. Alabama, 586

F.2d 462 (5th Cir. 1978).

Fourth, it is conceivable that the Texas Court of

Criminal Appeals did not misunderstand the facts in

regard to the petitioner’s habeas corpus cases, but, in-

stead, by refusing to entertain the petitioner’s claim, in-

tended to adopt a new rule: that state habeas corpus

jurisdiction would not extend to a challenge to one con-

viction pending in federal court, at least when the latter

conviction was used to enhance the sentence given for

the former conviction. Such a rule, would, however, be a

substantial departure from the current rule followed by

the Texas courts. See Ex parte Powers, supra; Ex parte

Green, supra; Ex parte McNeil, supra. It would,

moreover, severely impair the flow of multiple offenders’

habeas corpus cases through the state and federal

systems. In order to obtain state habeas corpus review

of convictions obtained after the original filing of a

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habeas corpus action in federal court, the petitioner

would, presumably, repeatedly have to dismiss and

refile his federal habeas corpus case. The delay and

disruption would be staggering. Finally, as petitioner

Carter’s case aptly demonstrates, such a rule would, if

respectd by the federal courts, bar the federal cour-

thouse door, Galtieri v. Wainwright, supra, at 355, to

many claims. This Court cannot believe that the Texas

Court of Criminal Appeals would have adopted such a

rule without explicitly saying so. It need not decide,

therefore, whether, if such a rule had been adopted,

dismissal for failure to exhaust state remedies would be

required.

Fifth, ‘‘[a] major concern“ motivating the Fifth Cir-

cuit in Galtieri v. Wainwright, supra, at 353-354, was,

“that, without the exhaustion doctrine, the state court

system would be isolated from federal constitutional

issued and would not have an impetus to develop and ap-

ply federal constitutional law.“ That concern has been

fully allayed here. As has been noted, the major con-

stitutional issue in the present case is whether Burks,

supra, and Greene, supra, apply retroactively. The

Texas courts have already faced that issue. In Ex parte

Mixon, 583 S.W.2d 378, 379 (Tex. Cr. App. 1979), the

Texas Court of Criminal Appeals held that, ‘‘the rule of

Burks and Greene, supra, is to be applied

retroactively.“ Dismissal of 74-1603-A, therefore,

would not provide the Texas courts with an impetus to

develop and apply federal constitutional law.“ Galtieri

v. Wainwright, supra, at 354.

Finally, the position adopted by the respondent at oral

argument raises grave doubts about his true motive in

advancing the motion to dismiss. To begin with, the

respondent acknowledged that to dismiss 74-1603-A

would be to bar forever federal habeas corpus review of

the petitioner’s 1969 conviction, but he kept insisting

upon that dismissal anyway, despite the obvious in-

justice of such a result. The United States Constitution,

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it should be remembered, explicitly guarantees access to

federal habeas corpus review. U.S. Const. art. I. § 9, cl.

2. Furthermore,the respondent virtually conceded at

oral argument that the Texas Court of Criminal Appeals

would, under Ex parte Mixon, supra, find the 1974

embezzlement reconviction unconstitutional and order

the petitioner’s release. He urged this Court to grant

the motion to dismiss because, at this juncture,that

court, rather than this one, is the proper one to rule on

the merits of the petitioner’s claim. While arguing in

support of the motion, however, the respondent refused

to agree to release the petitioner on bail pending the en-

try of the Court of Criminal Appeals’ ruling. That

refusal entirely undermines the respondent’s

argument. The respondent claims to be motivated by

respect for the state court system and a concern for pro-

cedural regularity and comity. Those interests,

however, do not adequately explain the respondent’s

stance. Respect for the state court system, procedural

regularity, and comity do not require service of a

sentence which the proper court would admittedly

find unconstitutional. To the contrary, if the Texas

Court of Criminal Appeals is the proper court to rule

on the merits of the petitioner’s claim, proper respect for

the state court system would appear to compel the

respondent to agree to release the petitioner on

bail. His refusal to do so, in conjunction with his conces-

sions as to the Court of Criminal Appeals’ view of the

merits, casts the respondent’s motion to dismiss for

failure to exhaust state remedies in a different light. It

appears not as an expression of respect for the state

courts and concern for procedural regularity and comity,

but as an indication of the respondent’s desire to keep

the petitioner in jail, whether or not he is there un-

constitutionally. As such, it will not be countenanced.

“The goal,“ of Galtieri v. Wainwright, supra, at 356,

“is to have a petitioner travel through each system

[state and federal] only once, at most, in his quest for

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vindication of alleged constitutional errors. Petitioner

Carter has now traveled through each system at least

twice. More is not required. The motion to dismiss for

failure to exhaust state remedies will be denied.

SUMMARY JUDGMENT

The petitioner’s argument in favor of his motion for

summary judgment is a rather simple one. In Burks v.

United States, 437 U.S. 1(1978),’”’ the petitioner notes,

“the Supreme Court held that the double jeopardy

clause of the Fifth Amendment precludes retrial after

the reversal of a conviction based on insufficient

evidence .... The same day, the court extended that por-

tion of the double jeopardy provision to petitioners con-

victed in state criminal proceedings. Greene v. Massey,

437 U.S. 19 (1978).“ Petitioner’s Brief in Support of

Motion for Summary Judgment and in Opposition to

Respondent’s Motion to Dismiss for Failure to Exhaust

State Remedies, at 11. Four years before those deci-

sions, the petitioner was reconvicted for embezzlement

after his original conviction had been overturned for in-

sufficient evidence. See Carter v. State, 510 S.W.2d 323

(Crim. App. 1974). The only two courts to face the issue,

the Ninth Circuit and the Texas Court of Criminal Ap-

peals, have decided that Burks, supra, and Greene,

supra, apply retroactively. See United States v. Bodey,

607 F.2d 265 (9th Cir. 1979); Ex parte Mixon,

supra. Those courts, the petitioners contends, are cor-

rect. Burks, supra, and Greene, supra, apply retroac-

tively, the petitioner insists, and mandate his release.

The respondent has three responses to the motion for

summary judgment. First, he contends that summary

judgment is inappropriate as there is a genuine issue as

to [a] material fact. Fed. R. Civ. P. 56. It is undisputed

that on October 7, 1974, the day his retrial for convic-

tion began, petitioner Carter filed a Special Plea with

the trial court, pursuant to Tex.Crim.Pro.Code Ann. art.

27.05, asserting that his retrial was, in effect, barred by

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the Double Jeopardy Clause. Texas law, the respondent

says, requires that a special plea submitted pursuant to

Article 27.05 be filed before the trial begins. That being

so, if the petitioner filed his Special Plea after his

retrial started, the respondent maintains, he waived his

right to object on double jeopardy grounds. As it is not

clear whether the plea filed by the petitioner was filed

before or after his retrial began, the respondent con-

tends, summary judgment cannot be granted.

The respondent, it should be noted, conceded at oral

argument that it was extremely unlikely that the Texas

Court of Criminal Appeals would, if it reached the

merits, accept this waiver argument. As waiver is, at

the first level, a matter of state law, the Court considers

that concession to be a damaging one. Regardless of the

conclusion the Court of Criminal Appeals might reach,

however, the Court finds the respondent's waiver“

argument unconvincing. To begin with, the law in

Texas on when a special plea must be filed is not as clear

as the respondent claims. In each case in which the

courts of Texas addressed the question of when a special

plea must be filed, the plea of double jeopardy had been

presented for the first time by a motion for new trial

after the conclusion of the second trial. See Galloway v.

State, 420 S.W.2d 721 (Crim. App. 1967); Watson v.

State, 162 Tex.Cr.R. 156, 282 S.W.2d 715 (1955); Hill v.

State, 79 Tex.Cr.R. 555, 186 S.W. 769 (1916). Although

the cases say that, former jeopardy must be pleaded

before the trial and cannot be raised for the first time on

Motion for New Trial, Galloway v. State, supra, at 723,

the state courts have never actually faced the question

of whether a special plea of former jeopardy filed on the

first day of the second trial, but after the trial com-

mences, is sufficient under Texas law.

In addition, if Texas law does, in fact, require that a

plea of former jeopardy be filed prior to the commence-

ment of the second trial, that requirement would not

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necessarily prevent the federal courts from reaching the

merits of petitioner Carter's claims. In Wainwright v.

Sykes, 433 U.S. 72,84 (1977), the Supreme Court held

that waiver pursuant to a state procedural rule would

not bar federal habeas corpus review if the petitioner

showed ‘‘cause for the noncompliance and ... actual pre-

judice resulting from the alleged constitutional viola-

tion.“ Here, any noncompliance“ by the petitioner

could certainly be explained by the fact that retrial in

his circumstances had not yet been held to be prohibited

by the Double Jeopardy Clause. As for ‘‘actual pre-

judice,’’ there can be little doubt that it is present in the

petitioner’s case. The Supreme Court, it should be

noted, has demonstrated a certain unwillingness to

recognize a waiver of a double jeopardy claim. See

Burks, supra, at 17-18; Menna v. New York, 423 U.S. 61

(1975). That unwillingness would undoubtedly extend

to the petitioner's case.

Finally and most importantly, for the purposes of this

proceeding, it simply does not matter whether petitioner

Carter filed his Special Plea’’ before or after his retrial

started. It does not matter whether he filed his ‘‘Special

Plea’ at all. The Supreme court held that a retrial after

a reversal for insufficient evidence constitutes double

jeopardy four years after Albert Carter was retried. The

respondent conceded that this holding was not

foreseeable. Thus, the question is not whether or when

petitioner Carter filed his Special Plea,“ but whether

the decisions in Burks, supra, and Greene, supra, are to

be applied retroactively. In Miranda v. State of

Arizona, 384 U.S. 436 (1966), the Supreme Court held

that the right against self-incrimination prevented the

admission of a defendant's confession at trial unless the

defendant had been fully appraised of his constitutional

rights prior to the time of his confession. One week

later, in Johnson v. State of New Jersey, 384 U.S. 719

(1966), the Court ruled on the habeas corpus petition of

two individuals who had been convicted long before the

decision in Miranda, supra. Although the petitioners

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had never been fully appraised of their constitutional

rights, their confessions had been admitted against

them at trial. At the time of their trial, it should be

noted, the petitioners did not suggest that their confes-

sion had been obtained unvoluntarily. They, expressly

relinquished their right under state law to have the issue

of voluntariness, and the accompanying evidence, sub-

mitted to the jury for redetermination.“ Johnson v.

State of New Jersey, supra, at 724. And their counsel,

“explicitly asserted that the confessions were truthful

and pleaded for leniency on this ground.” Jd. at

725. That, however, did not prevent the Supreme Court

from reaching the issue of whether the admission of the

petitioner’s confessions violated the right against self-

incrimination, The Court did not ask whether the defen-

dants had objected to their failure to receive a Miranda

warning; it knew that, at the time of their trial, neither

the petitioners nor anyone else knew that there was such

a thing as a Miranda warning. The Court simply asked

whether it should apply Miranda, supra, retroactively.

Id. at 726. Similarly, in the present case, this Court

need not determine whether the petitioner

filed a timely objection to his retrial. It simply need

determine whether Burks, supra, and Greene, supra, ap-

ply retroactively to prohibit that retrial.

The second argument advanced by the respondent in

opposition to the petitioner's motion for summary judg-

ment is that Burks, supra, and Greene, supra, if applied

retroactively, do not require the petitioner's release.

Burks and Greene, the respondent says, hold that a per-

son cannot be retried after his conviction is overturned

for insufficient evidence. Jackson v. Virginia,

U.S. , 99 S.Ct. 2781 (1979), however, the respon-

dent contends, establishes that, for federal habeas cor-

pus purposes, insufficient evidence“ is to be defined as

evidence from which, ‘‘no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.“

Id. at 2792. As the respondent hastens to point out, the

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present proceeding is a federal habeas corpus pro-

ceeding. The petitioner's 1972 embezzlement convic-

tion, overturned by the Texas Court of Criminal Appeals

in 1974, see Carter v. State, 510 S.W.2d 323 (Crim. App.

1974), was, the respondent argues, supported by

evidence from which a “rational trier of fact could have

found proof of guilt beyond a reasonable doubt.”

Jackson v. Virginia, supra. Therefore, according to the

respondent, the petitoner’s 1974 reconviction for

embezzlement should not be overturned by this Court

even if Burks, supra, and Greene, supra, apply retroac-

tively.

The respondent appears to have confused due process

and double jeopardy analysis. In Jn re Winship, 397

U.S. 358, 364 (1970), the Supreme Court held, ‘‘that the

Due Process Clause protects the accused against convic-

tion except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which

he is charged.“ In Jackson v. Virginia, supra, at 2786,

the Court decreed that a federal court sitting in habeas

corpus must declare invalid under the Due Process

Clause a conviction obtained in violation of the Winship

standard. In re Winship, supra, and Jackson v.

Virginia, supra, do not apply to the motion presently

under consideration. The petitoner’s motion for sum-

mary judgment is based not on the Due Process Clause,

but on the Double Jeopardy Clause. In Burks, supra,

the Supreme Court, held that the Double Jeopardy

Clause precludes a second trial once a reviewing court

has determined that the evidence introduced at trial was

insufficient to sustain the verdict.“ Greene, supra, at

24. In Greene, supra, decided the same day, the

Supreme Court, exercising its federal habeas corpus

jurisdiction, applied the standard announced in Burks to

state criminal proceedings. It is undisputed that the

petitioner in the present case was retried after a

reviewing court,“ the Texas Court of Criminal Appeals,

determined that the evidence introduced at [his 1972

embezzlement] trial was insufficient to sustain the ver-

A-17

dict.“ See Carter v. State, supra. With his motion for

summary judgment, the petitioner urges this Court, sit-

ting in habeas corpus, to apply the Burks standard to

that retrial and declare his conviction invalid. If Burks,

supra, and Greene, supra, apply retroactively, peti-

tioner’s motion must be granted.

The third and final argument advanced by the respon-

dent in opposition to the motion for summary judgment

is, as it must be, that Burks, supra, and Greene, supra,

do not apply retroactively. The two most relevant

Supreme Court decisions are Linkletter u. Walker, 381

U.S. 618 (1965), and Robinson v. Neil, 409 U.S. 505

(1973). In Linkletter u. Walker, supra, the Court

discussed the retroactive application of its decisions at

length and stated that only decisions interpreting pro-

cedural rules which affected. the very integrity of the

fact-finding process, id. at 639, would be applied

retroactively. In Robinson v. Neil, supra, at 508,

however, faced with the question of whether to apply

Waller v. Florida, 397 U.S. 387 (1970), a double jeopardy

decision, retroactively, the Court said that the Linklet-

ter test was, simply not appropriate.“ The guarantee

against double jeopardy,’’ the Court explained in Robin-

son v. Neil, supra, at 509:

is significantly different from procedural

guarantees held in the Linkletter line of cases to

have prospective effect only. While this guarantee,

like the others, is a constitutional right of the

criminal defendant, its practical result is to prevent

a trial from taking place at all, rather than to pro-

scribe procedural rules that govern the conduct of a

trial.

Waller v. Florida, supra, the Supreme Court held, was,

“to be accorded full retroactive affect.“ Robinson v.

Neil, supra, at 511.

A-18

To this Court’s knowledge, two courts have faced the

question of whether Burks, supra, and Greene, supra,

are to be applied retroactively: the Ninth Circuit in

United States v. Bodey, 607 F.2d 258 (9th Cir. 1979),

and the Texas Court of Criminal Appeais in Ex parte

Mixon, supra, and Ex parte Reynolds, 588 S.W.2d 900

(Tex. Cr. App. 1979). Relying on Robinson v. Neil,

supra, both responded in the affirmative. This Court

agrees. It finds particularly persuasive the analysis

employed by the Texas Court of Criminal Appeals in Ex

parte Reynolds, supra, at 902-904, and, without

repeating it, hereby adopts that analysis as its

own. The petitioner’s 1974 retrial for embezzlement

violated the Double Jeopardy Clause. This Court, un-

fortunately, cannot stop the retrial from taking

place. It can, however, declare the trial invalid and

order the petitioner’s release. That is what the Con-

stitution requires. This is what the Court will do.

CONCLUSION

For the reasons stated above, it is hereby ORDERED,

ADJUDGED, and DECREED that the respondent's

Motion to Dismiss For Failure to Exhaust State

Remedies be, and the same is, DENIED; that the peti-

tioner’s Motion for Summary Judgment be, and the

same is, GRANTED; and that the petitioner’s Motion

for Bail be, and the same is, DENIED AS MOOT. The

court finds that the 1974 conviction of the petitioner for

embezzlement violated the constitutional prohibition

against double jeopardy. It hereby ORDERS,

therefore, that the petitioner's application for a writ of

habeas corpus be, and the same is, GRANTED and that

the petitioner be RELEASED from custody.

A-19

DONE at Houston, Texas, this 17th day of July, 1980.

/s/ Gabrielle K. McDonald

United States District Judge

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ALBERT H. CARTER. 5

Petitioner, 8

5

V. 8 CIVIL ACTION

8 NO. H-80-433

W.J. ESTELLE, JR., §

Director, Texas Depart- 5

ment of Corrections, §

Respondent. §

FINAL JUDGMENT

In accordance with the Court’s Memorandum and

Order entered July 17, 1980, this action is hereby

DISMISSED. Pursuant to the petitioner’s specific re-

quest, it is hereby DECLARED that the decision in

Carter v. State, 510 S.W.2d 323 (Tex. Cr. App. 1974) and

this Court’s Memorandum and Order of July 17, 1980,

entitle the petitioner to a judgment of acquittal in Cause

No. 178,126, styled the State of Texas vs. Albert H.

Carter, in the 185th District Court of Harris County,

Texas.

This is a FINAL JUDGMENT.

DONE at Houston, Texas, this 12th day of August,

1980.

/s/ Gabrielle K. McDonald

United States District Judge

APPENDIX C

ALBERT H. CARTER, Petitioner-Appellee,

v.

W. J. ESTELLE, JR., Director, Texas

Department of Corrections,

Respondent-Appellant.

No. 80-1981.

United States Court of Appeals,

Fifth Circuit.

June 1, 1982.

Appeal from the United States District

Court for the Southern District of Texas.

Before POLITZ and RANDALL, Circuit Judges, and

PARKER“, District Judge.

RANDALL, Circuit Judge:

This case involves two questions: (1) whether peti-

tioner Albert H. Carter met the requirements of the ex-

haustion doctrine before bringing the present federal

habeas corpus action and (2) whether his 1974 retrial

and conviction for embezzlement violated the double

jeopardy clause. The district court below held that

state remedies had been exhausted, found for Carter on

his substantive claims, and ordered him released. The

State of Texas has appealed this decision. We

affirm. Our view is that Carter has no available and ef-

fective state remedy in the state courts and has met the

requirements of exhaustion doctrine. We also agree

with the district court's analysis of the double jeopardy

* Chief Judge of the Middle District of Louisiana, sitting by

designation.

C-2

issue, which in several ways anticipated our own later

decision in Bullard v. Estelle, 665 F.2d 1347 (5th Cir.

1982).

I, THE HISTORY OF THIS LITIGATION.

Carter was convicted of perjury in Cause No. 2158 in

the Middle District of Georgia in 1962. In 1969, he was

convicted of his second felony offense, embezzlement, in

the 174th District Court of Harris County, Texas, in

Cause No. 137,784. For the 1969 conviction, Carter

received a sentence of seven years. During his in-

carceration for the 1969 conviction, he was indicted and

convicted in still another case, Cause No. 178,126, again

for embezzlement. This third conviction occurred on

September 18, 1972, and on October 24, 1972, he was

sentenced to life imprisonment. The 1962 and 1969 con-

victions were used to enhance Carter’s sentence to life,

and the life sentence was ordered to run consecutively to

his seven-year sentence for the 1969 conviction.

Carter appealed his 1972 conviction to the Texas

Court of Criminal Appeals. The Appeals Court reversed

his conviction, finding that there was insufficient

evidence to establish ownership and control of the

money the indictment had charged Carter with embezzl-

ing. The case was remanded to the trial court and

Carter filed a Special Plea’’ claiming that double

jeopardy barred his retrial. The trial court did not

specifically pass on the Special Plea’’, but Carter was

subsequently retried and convicted in 1974 on an iden-

tical embezzlement charge. Once again, the 1962 and

1969 felony convictions were used to enhance his

sentence to life, this sentence to be served consecutively

to the seven year sentence he was already serving for the

1969 coonviction.

Carter did not appeal his 1974 conviction. On

December 3, 1974, he filed a habeas petition, Cause No.

74-H-1603, attacking the conviction in federal

C-3

court. After four different amendments by Carter, this

petition eventually raised claims attacking the 1974,

1969, and 1962 convictions.’

In 1978, the Supreme Court decided Burks v. United

States, 437 U.S. 1, 98 S.CT. 2141, 57 L.Ed.2d 1 (1978),

and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

L.Ed.2d 15 (1978), and held that the double jeopardy

clause precludes a second trial of a defendant when a

prior conviction has been reversed by an appellate court

for insufficiency of the evidence. This was substantially

the same theory which Carter had argued four years

previously in his 1974 ‘‘Special Plea’ requesting that he

not be retried for embezzlement. Thus, on July 19,

1978, a month after Burks and Greene were decided,

Carter filed a fifth amendment to his habeas petition in

No. 74-H-1603, alleging for the first time in his various

habeas petitions that the double jeopardy clause in-

validated his 1974 conviction.

The State of Texas moved to dismiss No. 74-H-1603,

alleging Carter’s failure to exhaust state remedies. The

State argued that because this newest theory was never

raised before in a state habeas petition or on appeal of

the 1974 conviction, Carter had not exhausted the

remedies available to him. Relying on this circuit’s en

banc decision in Galtieri v. Wainwright, 582 F.2d 348

(5th Cir. 1978), the State argued that No. 74-H-1603 was

at best a mixed petition consisting of both exhausted

and unexhausted claims, and, under Galtieri, the entire

petition should be dismissed without prejudice. United

States Magistrate Ronald J. Blask, in a memorandum

and recommendation signed August 18, 1978, recom-

mended that the motion to dismiss be granted. On

August 21, 1978, District Judge Finis E. Cowan

adopted the recommendation and dismissed No.

74-H-1603 for failure.to exhaust state remedies.

At this point events took a complicated and unusual

turn. On August 31, 1978, Carter filed a motion for

C-4

reconsideration of the court’s decision, requesting that

the dismissal order be vacated. Carter argued that his

petition in No. 74-H-1603 attacked both his 1969

embezzlement conviction and his 1974 embezzlement

conviction. He claimed that he had fully exhausted his

state remedies as to the former and that his double

jeopardy claim under Burks, supra, and Greene, supra,

applied only to the latter. He argued, moreover, that

dismissal of No. 74-H-1603 in its entirety would prevent

him from obtaining any federal habeas corpus review of

his 1969 conviction. Carter had filed No. 74-H-1603 on

December 3, 1974, some five months before he had fully

discharged the seven-year sentence associated with the

1969 conviction. Because of that, federal habeas corpus

jurisdiction over No. 74-H-1603 continued to exist under

Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20

L.Ed.2d 554 (1968), even after May 17, 1975, when ser-

vice of the seven-year sentence was completed. It would

not, however, Carter contended, extend to any federal

habeas corpus action filed after May 17, 1975, even if

that action had originally been filed in federal court

prior to that date and had been dismissed for failure to

exhaust state remedies. If justice was to be done,

Carter insisted, No. 74-H-1603 could not be dismissed in

its entirety.

The matter was once again referred to Magistrate

Blask, who issued a second memorandum and recom-

mendation. In this second memorandum, dated

January 9, 1979, the magistrate characterized No.

74-H-1603 as a mixed petition with the 1969 claims ex-

hausted and the 1974 claims only partially

exhausted. The magistrate then discussed the applica-

tion of the exhaustion requirement laid out in Galtieri v.

Wainwright, supra, to petitioner Carter’s case:

TheGaltieri rule is premised upon the principle that

“requiring exhaustion of all claims does not ‘bar the

federal courthouse door’ to any petitioner. Galtieri

C-5

v. Wainwright, supra, at 355. Carter’s seven year

challenge will, in my judgment, be barred if, as the

respondent suggest, the entire petition should be

dismissed. Furthermore, ... this petition raises the

problem of the appropriate resolution to be made

where two distinct convictions arising in two

separate state courts in this County are challenged

in the same action in federal court... [I]n order to

avoid the harsh consequences engendered by

dismissal of petitioner's viable seven year challenge

and yet satisfy the demands of the exhaustion doc-

trine as to the issues raised in the life sentence case,

it is Recommended that the Court’s Order and Final

Judgment dated August 21, 1978, be modified as

follows:

1. This cause of action be severed and designated

as C.A. No. 74-H-1603-A, incorporating petitioner’s

independent challenge to his 1969 seven year

embezzlement conviction in Cause No. 137,784 in

the 174th Judicial District Court of Harris County,

Texas, and C.A. No. 74-h-1603-B, encompassing

petitioner’s independent challenge to his 1974 life

sentence imposed in Cause No. 178,126 in the 185th

Judicial District Court of Harris County, Texas;

2. As the court hes previously adopted the

Memorandum and Recommendation of the under-

signed that the life sentence (C.A. No. 74-H-1603-B)

contains both exhausted and unexhausted claims,

said action be dismissed, without prejudice, for

failure to exhaust all available state remedies as re-

quired by law, and

3. Petitioner’s seven year challenge (C.A. No.

74-H-1603-A) be retained on the court’s docket

awaiting final disposition of the claims raised

therein.

C-6

On February 8, 1979, Judge Cowan followed this recom-

mendation, adopting Magistrate Blask’s Memorandum

and Recommendation and splitting No. 74-H-1603 into

two actions.

Carter did not wait for the February 8 severance by

the district court. Instead, after the August 21 order

dismissing the case, he filed a second state habeas

challenge to his 1974 conviction in state court, No.

178,126-B, on September 21, 1978, in the 185th District

Court of Harris County, Texas.’ The district court

dismissed, finding it had no jurisdiction. On January

10, 1979, the Texas Court of Criminal Appeals dismiss-

ed, explaining:

In this Court, Carter argues that the order entered

by the trial court was incorrect; and, that because of

a recent amendment to Article 11.07, Vernon’s

Ann.C.C.P., the trial court erroneously concluded

that it did not have jurisdiction of this

proceeding. We need not reach Carter’s conten-

tions, however, because he admits under oath that

he is presently challenging the validity of his con-

viction in Cause Number 178,126, by federal habeas

corpus proceedings. Out of deference to the federal

courts, we will not exercise our habeas corpus

jurisdiction until Carter’s attack on the validity of

his conviction in Cause Number 178,126, has been

finally concluded in the federal courts.

Therefore, the instant proceeding is dismissed

without prejudice to Carter’s reapplying to the trial

court for habeas corpus relief pursuant to Article

11.07, supra, when his challenge to the validity of

his conviction in Cause No. 178,126 has been finally

concluded in the federal courts.

On March 9, one month after Judge Cowan ordered

No. 74-H-1603 severed, Carter brought a third state

habeas corpus action in Harris County District

C-7

Court. In this petition, No. 178,126-C, Carter alleged

that his 1974 conviction was barred by double jeopardy,

and reasserted his other claims in No. 178,126-B. He re-

quested that the court proceed to the double jeopardy

claim first, since it would not require an evidentiary

hearing. He included a copy of Judge Cowan's Order of

February 8, 1979, and gave an explanation of how the

district court had dealt with No. 74-H-1603. This third

state habeas petition was eventually dismissed by the

Texas Court of Criminal Appeals on November 14,

1979. The Court of Criminal Appeals explained its

reasons as follows:

In his present application, petitioner admits that he

has an application for writ of habeas corpus pending

in the United States District Court for the Southern

District of Texas, Houston Division, in an action

styled Albert H. Carter v. W.J. Estelle, Jr., Civil Ac-

tion No. 74-H-1603.

In Ex parte Green, 548 S.W.2d 914 (Tex.

Cr.App.1977), this Court stated: A petitioner must

decide which form [sic] he will proceed in because

this Court will not and the trial court in this State

should not consider a petitioner’s application so

long as the federal courts retain jurisdiction of the

same matter. Ex parte Powers, 487 S.W.2d 101

(Tex. Cr. App. 1972).“ See also Ex parte McNeil, 588

S. W. 2d 592 (Tex. Cr. App. 1979).

Petitioner's application for writ of habeas corpus is

dis missed without prejudice to his right to reapply

to the trial court for habeas corpus relief pursuant

to Article 11.07, supra, when his challenge to the

validity of his conviction has been finally concluded

in the federal courts.

Carter moved for reconsideration of the dismissal

order, explaining in a letter that his claims in the present

C-8

state habeas proceeding dealt with the 1974 conviction,

not with the 1969 conviction, which was the subject of

No. 74-H-1603-A:

This Court dismissed this action without prejudice

solely because of a gross misunderstanding by this

Court of a single fact. In the second paragraph of

[its] dismissal order, this Court stated that ‘‘peti-

tioner admits’’ that he has a federal habeas curpus

action pending. That much is true, but the pending

federal action (No. 74-H-1603-[A]) does not attack

petitioner’s present conviction (i.e., Cause No.

178,126 in the state District Court). Rather, the

federal habeas action attacks only Petitioner's prior

convictions (including a federal conviction and three

misdemeanor convictions) which resulted in penal

sentences which Petitioner fully discharged many

years ago—and as to which the federal court has for-

mally determined that Petitioner has fully ex-

hausted state remedies.

On January 14, 1980, the Texas Court of Criminal Ap-

peals denied the Motion for Reconsideration without

written order.

Carter now returned to the federal courts and filed the

present action, No. H-80-433, on February 29, 1980,

once again attacking his 1974 conviction. Carter now

alleged as his sole ground for relief his double jeopardy

claim; he stated in his petition that he had more than

30 additional grounds for relief’’ but that he would not

assert them to avoid “‘unduly burdening the Court.“

The State of Texas once again moved to dismiss for

failure to exhaust state remedies. A hearing was held

before Judge Gabrielle McDonald on July 13, 1980. At

the conclusion of argument, the district court orally

denied the State’s motion for dismissal, granted sum-

mary judgment to Carter, and ordered him released im-

mediately.

C-9

On July 17, 1980, the court issued an opinion explain-

ing the reason for its decision. It argued that the Texas

Court’s refusal to hear Carter’s petition should not put

Carter to the unpleasant choice of dismissing the federal

action in No. 74-H-1603-A and losing the ability to at-

tack his 1969 conviction forever, or instead remaining

incarcerated until the federal courts heard No.

74-H-1603-A and Carter could then refile in state

court. The court held that the actions of the Texas

Court of Criminal Appeals were sufficient for exhaus-

tion purposes. It relied in part on its assessment that

the Texas courts had dismissed the petition due to a

misunderstanding of the facts of the case:

[T]he failure of the Texas Court of Criminal Appeals

to exercise habeas corpus jurisdiction over the pre-

sent claim is, almost without question, attributable

to a factual misunderstanding, a misunderstanding

which the petitioner has made every effort to cor-

rect. The cases which the Texas Court of Criminal

Appeals relied upon in refusing to entertain peti-

tioner Carter’s application for writ of habeas corpus

firmly establish that the state courts will not accept

habeas corpus jurisdiction of a case if the same case

is being litigated in federal court.... That was not

the case with the application that petitioner Carter

had pending in federal court. As Magistrate Blask

and Judge Cowan correctly determined, the petition

before the Texas Court of Criminal Appeals and the

petition pending in federal court involved, two

distinct convictions arising in two separate state

courts.”’ . The Court of Criminal Appeals, it can be

seen, failed to understand the facts. That is unfor-

tunate, to say the least, but it is not the petitioner’s

fault.... It cannot, moreover, prevent this Court

from reviewing the petitioner's claim. See Smith v.

Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582

(1978); Carr v. Alabama, 586 F.2d 462 (5th Cir.

1978). |

C-10

499 F.Supp. 777 at 781-82.

The District Court considered but rejected the

possibility that the Texas Courts were applying a rule of

justiciability or comity requiring prior exhaustion'“ of

federal remedies which might conceivably moot or other-

wise affect the state habeas case.

[I]t is conceivable that the Texas Court of Criminal

Appeals did not misunderstand the facts in regard

to the petitioner’s habeas corpus cases, but, instead,

by refusing to entertain the petitioner’s claim, in-

tended to adopt a new rule: that state habeas corpus

jurisdiction would not extend to a challenge to one

conviction when the petitioner had a challenge to

another conviction pending in federal court, at least

when the latter conviction was used to enhance the

sentence given for the former conviction. Such a

rule, would, however, be a substantial departure

from the current rule followed by the Texas

courts... It would, moreover, severely impair the

flow of multiple offenders’ habeas corpus cases

through the state and federal systems. In order to

obtain state habeas corpus review of convictions ob-

tained after the original filing of a habeas corpus ac-

tion in federal court, the petitioner would,

presumably, repeatedly have to dismiss and refile

his federal habeas corpus case. The delay and

disruption would be staggering. Finally, as peti-

tioner Carter’s case aptly demonstrates, such a rule

would, if respected by the federal courts, ‘‘bar the

federal courthouse door, Galtieri v. Wainwright,

supra, at 355, to many claims. This Court cannot

believe that the Texas Court of Criminal Appeals

would have adopted such a rule without explicitly

saying so. It need not decide, therefore, wheth» if

such a rule had been adopted, dismissal for failure to

exhaust state remedies would be required.

499 F.Supp. at 782-83 (emphasis added).

C-11

The State of Texas filed a timely appeal to this

court. However, in a still further procedural wrinkle on

this case, the State sought and obtained a stay in the

proceedings in No. 74-H-1603-A pending the outcome of

the present appeal.’

On appeal we are presented with two questions:

whether Carter’s double jeopardy claim was properly ex-

hausted and thus properly before the district court, and

if so, whether the district court’s assessment of Carter’s

double jeopardy claim was correct as a matter of

law. The latter is more or less a straightforward ques-

tion involving application of Burks and Greene, as we

discuss infra. The exhaustion issue presents a threshold

question of some difficulty, however. This problem is

complicated by the procedural tangles which have

‘marked this litigation from its inception. It is further

complicated by the summary and ambiguous actions of

the Texas Court of Criminal Appeals. Our analysis of

the exhaustion issue will proceed in five stages. First

we discuss the doctrinal history of the Texas rule of

habeas abstention used by the Court of Criminal Ap-

peals in this case. Second, we examine the Texas

scheme’s adequacy and effectiveness for the prompt

resolution of habeas claims in general and the claim in-

volved in this case in particular. Third, we discuss the

exhaustion requirement and its theoretical underpinn-

ings. Fourth, we demonstrate how the judicially

developed exceptions to the rule of exhaustion all derive

from the same theoretical framework as the rule

itself. Fifth, we apply that framework to the Texas rule

as we understand it to operate in this case.

II. THE DEVELOPMENT OF THE TEXAS RULE

OF HABEAS ABSTENTION.

The District Court based its decision upon the

assumption that the Texas Court of Criminal Appeals

had misunderstood the severance procedure instituted

by Judge Cowan. The district court held that the Court

C-12

of Criminal Appeals mistakenly thought that No.

74-H-1603-A, which remained in the federal courts, con-

tained a challenge to the 1974 conviction because No.

74-H-1603 had contained such a challenge. We must

begin our analysis, however, with a rejection of the

district court’s assumption. The record shows that the

Court of Criminal Appeals was provided with a complete

explanation of Judge Cowan’s decision by Carter and

that Judge Cowan's order itself was submitted to the

Court of Criminal Appeals along with Carter’s habeas

petition in No. 178,126-C. Thus, we cannot assume that

the Court of Criminal Appeals was ignorant of or

misunderstood the relevant circumstances of the case.

Rather, we must take the Court of Criminal Appeals

decisions in No. 178 126-B and No. 178,126-C at face

value. These opinions, the relevant language of which

appears above, dismissed Carter’s habeas petitions on

the basis of three Texas cases, Ex parte Powers, 487

S.W.2d 101 (Tex.Cr.App. 1972), Ex parte Green, 548

S.W.2d 914 (Tex.Cr.App.1977), and Ex parte McNeil,

588 S.W.2d 592 (Tex.Cr.App.1979). These cases

developed a doctrine of state habeas abstention which

we now examine in detail.

In Ex parte Powers, the Court of Criminal Appeals an-

nounced what appeared to be a new rule of judicial

deference to ongoing federal criminal proceedings:

This application for writ of habeas corpus was

dismissed on May 3, 1972, for the reason that both

the United States Court of Appeals for the Fifth

Circuit and the United States District Court for the

Western District of Texas had retained jurisdiction

of this case, holding it in abeyance in habeas corpus

matters pending before them. This court declined

to consider the petitioner’s application so long as

those courts retained jurisdiction.

C-13

Appropriate orders have now been entered by both

the United States Court of Appeals for the Fifth

Circuit and the United States District Court for the

Western District of Texas, dismissing all matters

pertaining to this case.

We will now consider the application for writ of

habeas corpus.

487 S.W.2d at 102. This rule was utilized again in Ex

parte Green. In that case, the petitioner had filed a writ

of habeas corpus in state district court, had it dismissed,

and then filed in federal district court. The federal court

dismissed, and an appeal was taken to the Fifth

Circuit. While the appeal was pending, there was an in-

tervening Supreme Court Decision, Menna v. New York,

423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), which

was relevant to the petitioner’s claim. The Fifth Circuit

remanded in the light of Menna, and the district court

dismissed the petition without prejudice in order to

allow the state courts an opportunitv to address the

question first. At this point, the petitioner filed an ap-

peal to the Fifth Circuit and filed a new habeas petition

in a state district court. Relying on Ex parte Powers,

the Court of Criminal Appeals held that consideration

by the state courts should be withheld until the federal

courts relinquished jurisdiction:

Further delay was caused by prosecuting an appeal

to the Fifth Circuit from the federal court order at

the same time Petitioner proceeded on his applica-

tion for writ of habeas corpus in the courts of this

State. A petitioner must decide which forum he will

proceed in, because this Court will not, and a trial

court in this State should not, consider a

petitioner’s application so long as the federal courts

retain jurisdiction of the same matter. Ex parte

Powers, 487 S.W.2d 101 (Tex.Cr.App.1972). The

Fifth Circuit Court of Appeals has now dismissed

—

*

C-14

Petitioner’s appeal from the federal district court

order; therefore, we will now consider Petitioner’s

application on its merits.

548 S.W.2d at 916. The language of Powers and Green

had not clearly indicated whether the proper procedure

was for the state court merely to hold the petition in

abeyance pending the outcome of federal proceedings, or

to dismiss it outright. This ambiguity was resolved in

Ex parte McNeil:

The petitioner now has pending in the United States

District Court for the Southern District of Texas in

civil Action No. H-79-393 styled John Alvin

McNeil, Petitioner v. W.J. Estelle, Jr., Director,

Texas Department of Corrections, Respondent, an

application for writ of habeas corpus seeking the

same relief that he seeks here. Since that court has

entertained and retained jurisdiction of the matter

we dismiss this application as we did in Ex parte

Powers, 487 S.W.2d 101 (Tex.Cr.App.1972) and Ex

parte Green, 548 S.W.2d 914 (Tex.Cr.App.1977).

See also Galtieri v. Wainwright, 582 F.2d 348 (5th

Cir. 1978).

588 S.W.2d at 592-93. Together, Powers, Green, and

McNeil stand for the proposition that whenever a peti-

tioner seeks a writ of habeas corpus in state court, if the

state court determines that a federal habeas proceeding

concerning the same matter’’ or seeking the same relief

is presently pending, the state court may not consider

the merits of the petition but must dismiss it.

The question arises whether this rule of state habeas

abstention is grounded upon notions of federal-state

comity or on the underlying jurisdiction of the Texas

courts. The Texas courts have construed their jurisdic-

tional powers very narrowly in other circumstances, and

have, in certain civil matters, refused on state constitu-

tional grounds to decide the merits of a case while a

C-15

federal court retains jurisdiction over the same

case. United Services Life Ins. Co. v. Delaney, 396

S.W.2d 855 (Tex.1965); see Moore v. El Paso County,

660 F.2d 586 (5th Cir. 1981); Palmer v. Jackson, 617

F.2d 424 (5th Cir. 1980); Romero v. Coldwell, 455 F.2d

1163 (5th Cir. 1972); Barrett v. Atlantic Richfield Co.,

444F.2d 38 (5th Cir. 1971) (Texas courts would not

decide state law issues in Pullman-type situation while

federal court retained jurisdiction). One panel of this

court has intimated that the rule of Ex parte Green has a

similar origin in the Texas courts’ restricted interpreta-

tion of their own constitutionally granted

jurisdiction. Red Bluff Drive-In, Inc. v. Vance, 648 F.2d

1020, 1025 n.4 (5th Cir. 1981).

However, the language actually used by the Court of

Criminal Appeals in its cases dealing with habeas

abstention suggests that the doctrine is based on comity

and not lack of jurisdictional power. The three reported

Texas cases speak of the Texas courts as ‘‘declin{ing] to

consider the petitioner’s application,’’ Ex parte Powers,

supra, at 102, and hold that the Court of Criminal Ap-

peals ‘‘will not, and a trial court in this State should

not’’ consider applications when federal proceedings are

pending. Ex parte Green, supra, at 916. Moreover, the

Court of Criminal Appeals, in dismissing Carter’s peti-

tion in No. 178,126-B, has justified its action out of

deference to the federal courts.”

A further reason to suspect that the abstention is bas-

ed on comity and not jurisdiction is that it has only been

applied so far in the context of state habeas petitions. If

the practice were based upon a true lack of jurisdiction,

then a criminal defendant directly appealing a convic-

tion who attacked prior convictions used for enhance-

ment would equally be forced to forego his appeal until

his federal habeas attacks on those prior convictions

were dismissed or fully litigated. Such a rule would ob-

viously have deleterious effects on a criminal

defendant’s right of appeal in Texas, and we have found

C-16

no Texas case where the abstention rule is invoked

under these circumstances. Hence we conclude that the

rule is one of comity specifically fashioned for use in the

habeas context, and not a rule stemming from an in-

herent lack of jurisdictional power.“

What had not been made clear by the three reported

Texas decisions is exactly what constitutes the same

matter pending in federal and state courts which would

require state abstention. The brief opinions given by

the Court of Criminal Appeals in Nos. 178,126-B and C

clarify the meaning of that term to some extent; but in

so doing they also broadly expand the scope of the

habeas abstention doctrine. It is the application of this

expanded doctrine for the first time to Carter’s petitions

which creates the procedural problems in this case.

We can understand the gloss which the Texas courts

have given to the term same matter by a careful ex-

amination of Carter’s habeas petitions in state and

federal courts. After Judge Cowan had initially dismiss-

ed No. 74-H-1603, but while the motion for reconsidera-

tion was still pending, Carter had filed habeas petition

No. 178,126-B in state court, attacking his 1974 convic-

tion. The Court of Criminal Appeals, noting that an at-

tack on the 1974 conviction was still pending in federal

court, dismissed and stated that ſoſut of deference to

the federal courts we will not exercise our habeas corpus

jurisdiction until Carter’s attack on the validity of his

1974 conviction in Cause No. 178,126, has been finally

concluded in the federal courts.“ Given that 74-H-1603

contained an attack on the 1974 conviction, and sought

the same relief as the state petition, this decision seems

in accord with the rule of Powers, Green, and McNeil.

However, after the severance of the federal petition in-

to 74-H-1603-A and B, and the dismissal of the latter,

Carter filed his third state habeas challenge to the 1974

conviction, No. 178,126-C. The first ground for relief

asserted in this petition and the one which Carter stress-

C-17

ed (as it did not require an evidentiary hearing), was dou-

ble jeopardy. But No. 178,126-C contained considerably

more in terms of substantive claims:

In addition to the double jeopardy ground for relief,

Petitioner hereby asserts all grounds for relief set

out on pp. A-1 to A-5, inclusive, of the Appendix A

to his First Supplemental Petition for Writ of

Habeas Corups, filod on September 25, 1978 in this

cause (as No. 178,126-B), which are herein incor-

porated by reference.

Pages A- I through A- ö of the First Supplemental Peti-

tion to No. 178, 126-B list twenty-six different challenges

to the 1974 conviction. Of particular importance,

however, is Ground for Relief III on page A-1:

III. Petitioner’s punishment was enhanced under

Texas Penal Code Article 63 (1925) by evidence of a

prior state embezzlement conviction (No. 137,784,

174th District Court of Harris County, Texas) and

of a prior federal perjury conviction (No. 2158,

United States District Court, Middle District of

Georgia, Albany Division), which convictions are

constitutionally invalid for the reasons hereinafter

described. See pp. B-1-B-6, post.

Pags B-1 through B-6, in turn, list eleven major

challenges to the 1969 conviction. One of these is the

constitutional invalidity of the 1962 conviction, for

which nine separate reasons are given.

In sum, Carter’s habeas petition in No. 178,126-C con-

tains constitutional challenges to his 1974, 1969, and

1962 convictions. Although after severence, No.

74-H-1603-A no longer challenged the 1974 conviction, it

did still attack the 1969 and 1962 convictions.’ Thus,

the federal court action challenged the 1969 and 1962

convictions while the state court action challenged these

two convictions plus the 1974 conviction. Under these

C-18

circumstances, the Texas Court of Criminal Appeals

dismissed Carter’s habeas petition, holding that the

same matters’’ were pending in federal and state court.

Given this action by the Texas Court of Criminal Ap-

peals, we conclude that by ‘‘same matter’’ is meant

„same conviction,” for in both state and federal court

Carter was attacking his 1969 and 1962 convictions."

An alternative hypothesis, that same matter“ means

instead the same substantive claim against a particular

conviction, must be rejected on the facts of this

case. For nothing in the record indicates that the Texas

Court of Criminal Appeals knew anything about the

nature of Carter’s attack on the 1969 and 1962 convic-

tions in federal court other than that these convictions

were in fact being attacked on some grounds. We have

examined Carter’s habeas petitions in state court

carefully and find no reference to the nature of the

claims being raised in federal court. Moreover, we have

carefully compared the claims raised in Carter’s habeas

petitions in No. 74-H-1603 with those raised in his state

habeas petition in No. 178,126-B (which were incor-

porated into the petition in No. 178,126-C), and we find

that the state petition raises new claims attacking the

1969 and 1962 convictions not found in Carter’s peti-

tions in No. 74-H-1603. Since the Texas courts could

not know which, if any, of the state and federal claims

were identical, we must conclude that the identity of the

claims raised in federal and state court is apparently ir-

relevant for the purposes of Ex parte Green: it is enough

that both pending actions deal with the ‘‘same matter,“

i. e., the 1969 and 1962 convictions.

However, if same matter“ refers to same convic-

tion’’, one might well ask why the Court of Criminal Ap-

peals dismissed the attack on the 1974 conviction as

well as the attacks on the 1969 and 1962 convictions, for

only the latter two constituted the ‘‘same matter’’. Ap-

parently, what Texas has done is adopt a rule analogous

C-19

to that of this circuit in Galtieri v. Wainwright, 582 F.2d

348 (5th Cir. 1978), that where a federal petition con-

tains a mixture of exhausted and unexhausted claims,

the entire petition will be dismissed, including the ex-

hausted claims. (The Supreme Court has recently decid-

ed in favor of a total exhaustion“ rule of this type in

Rose u. Lundy, U. S.. 101 S.Ct. 1198, 71 L.Ed.2d

379 (1982).) The analogy to Galtieri is that where a state

habeas petition contains some claims pending in federal

court, the whole petition will be dismissed. We are

strengthened in this conclusion by the fact that the

Court of Criminal Appeals’ opinion in Ex parte McNeil

specifically refers to Galtieri for support.

The decision by the Texas courts to dismiss all claims

when only some of them attack the same convictions as

are pending in federal court may be based on a familiar

rationale in the law of habeas corpus: The avoidance of

piecemeal litigation. The State of Texas has previously

expressed the desire that habeas petitioners, insofar as

it is reasonably possible, bring all of their claims at one

time to the Texas courts for determination. See, e.g., Ex

parte Carr, 511 S.W.2d 523 (Tex.Cr.App.1974). The

desire that habeas claims, where possible, be brought

together in one proceeding underlies this circuit’s en

banc decision in Galtieri v. Wainwright, supra, and the

Supreme Court’s recent pronouncement in Rose v. Lun-

dy, supra, for the reasons described in those

opinions. Some of Carter’s claims attack the 1974 con-

viction via an attack on the enhancing 1969 and 1962

convictions, while others attack the 1974 conviction by

itself without reference to the earlier convictions. If the

Texas courts dismiss only the former sorts of claims and

retain and pass upon the latter, they will be creating the

very sort of piecemeal litigation they desire to avoid.

There is a further but related reason why the Court of

Criminal Appeals may have dismissed all of Carter's

claims. The determination of the validity of the 1969

and 1962 convictions in federal court may have a signifi-

C-20

cant impact on the validity of the 1974 sentence in state

court. If one of the two prior convictions is held invalid

in federal court, the sentence in the 1974 conviction will

automatically ‘‘unravel,’’ because the prior convictions

were used to enhance that sentence. Thus if conserva-

tion of judicial resources is the desideratum, postpone-

ment of hearing any claims attacking the 1974 sentence

may be desirable since resolution of the claims pending

in federal court may place Carter's state claims in a con-

siderably different posture.

Whatever the reasons for the extension of the habeas

abstention doctrine of Ex parte Green to Carter's case,

the result is that because some of Carter's challenges to

the 1974 conviction are based upon attacks on convic-

tions currently being challenged in federal court, no at-

tack on the 1974 conviction may proceed in state

court. Because the effect of the Texas rule is central to

our disposition of this case, we now examine the conse-

quences which flow from that rule in some depth.

III. THE CONSEQUENCES OF HABEAS ABSTEN-

TION.

Our analysis of Texas case law has led us to the follow-

ing general rule: Assume that a petitioner has been con-

victed of a felony A, and this conviction A is later used

to enhance the sentence in a subsequent conviction for

felony B. Assume further that the petitioner raises a

claim or set of claims (call it Al) attacking his convic-

tion A in the state courts, whether by direct appeal or

state collateral review procedures. If his claim is ex-

hausted in the state courts, it may be heard through a

habeas petition in the federal courts. Picard v. Connor,

404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Assume that Al is thus pending in the federal

courts. In the meantime, petitioner has been tried and

convicted of felony B. He now raises in a state habeas

proceeding claims Bl and B2, attacking conviction

B. Bl is an attack on B which makes no reference to and

C-21

does not depend on the validity of A. B2, on the other

hand, is an attack on B on the grounds that A, the con-

viction used to enhance B, is invalid. The rule which the

Texas courts appear to have adopted here is that if B!

and B2 are now raised in state court, and an attack on A

is pending in federal court, the same matter”’ is pen-

ding for purposes of Ex parte Green, and the state court

will refuse to hear both BI and B2. This is true even

though the attack on A in B2 may not be identical to

that in Al,’ and even though BI contains no attack on A

at all. Apparently, the fact that any challenge to A ex-

ists in both state and federal courts is enough to prevent

the Texas courts from hearing the entire petition.

This rule is not without difficult consequences for a

petitioner who seeks to present claims involving suc-

cessive convictions in an efficient and orderly

fashion. Again assume that Al has just been exhausted

and has just been filed in federal court. The petitioner

now seeks to attack the new conviction B on the basis of

claims BI and B2. He may not bring Bi and B2 directly

to the federal court because they are not exhausted.

But he cannot bring them in a habeas petition in state

court to exhaust them, for then state and federal courts

would be passing on the same matter’’ (B2 and Al)

under the meaning of the Texas rule and so both B1 and

B2 would be dismissed. This means that he must either

dismiss Al in federal court or wait until that claim is

completely exhausted in the federal courts before he

may begin the entire process of exhaustion over again in

the state courts with B1 and B2.

Of course, it may be objected that the simpler and bet-

ter solution is simply to dismiss Al and exhaust B1 and

B2 first. But this, too, has its problems. If any of the

grounds in Al are particularly meritorious, it seems un-

fair to require the petitioner to remain incarcerated so

that Bl and B2 may be tested in the state courts

first. This is especially so if BI and B2 are novel or

C-22

uncertain claims. The petitioner is then put to a

strategic choice which is at odds with the fundamental

purposes of the Great Writ—to have meritorious claims

heard and vindicated and illegal incarceration ended

with swift dispatch. Moreover, whichever path peti-

tioner chooses—holding off the former claim until the

latter claims are exhausted or the latter until the former

is passed on in the federal courts—there is the very real

danger that the delayed claim or claims will become

stale and difficult of proof with the passage of

time. Witnesses may die unexpectedly, memories may

fade or cloud, and evidence may be lost, damaged, or

destroyed. It is always true that these dangers are in-

herent whenever litigation is protracted. But it is clear

that they would be greatly aggravated here because

each set of new claims may not be pursued immediately

as it arises. This defeats an orderly and efficient presen-

tation of claims through the state and federal systems.

That is not the worst of it. Our underlying assump-

tion up until now has been that the collateral attack on

the petitioner’s new conviction B is begun before pro-

ceedings of any substnce with respect to Al occur in

federal court. But there is no reason to believe that

every case will be so fortuitous in its timing. Indeed, it

is equally likely that the habeas attack on B would begin

during an evidentiary hearing on Al, or after its comple-

tion, or on appeal to this court, or even during the

pendency of a petition for certiorari to the Supreme

Court. If the petitioner is well into the middle of federal

consideration of his prior claims, a tremendous waste of

judicial resources is expended by forcing him to dismiss

his earlier claims until the later ones can ‘‘catch up”

with them. And if the choice is made the other way, and

the attack on B set asside instead, federal consideration

of Al may drag on for years. Either way, the petitioner,

trapped in a procedural snarl of epic proportions, is

caught in the middle. He remains in jail, and the pur-

poses of the Great Writ are twisted beyond recognition.

C-23

The problems just described are a result of the time

delay between the filing of Al and the filing of the

habeas attack on B in state court. When one is dealing

with multiple convictions, a time lag between attacks on

earlier and later convictions will almost always exist of

necessity. Indeed, under Texas law A cannot even be

used for enhancement of B to a life sentence unless A

has become final prior to the commission of the offense

which is the subject of conviction B. E.g. Carter v.

State, 510 S.W.2d 323 (Tex.Cr.App.1974); Rummel v.

Estelle, 587 F.2d 651, 656 (5th Cir. 1978); aff'd, 445 U.S.

263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (both discuss-

ing predecessor to present enhancement statute

Tex.Pen.Code Ann. § 12.42 (West)). Given this fact, a

time lag between the filing of a habeas attack on A and

on B is virtually certain; consequently the probability is

considerable that petitioners attacking multiple convic-

tions will be ensnared in the difficulties caused by the

time lag and Texas habeas law.

This is precisely the situation in which Carter now

finds himself. The Texas courts have told him that no

attack on the 1974 conviction is possible while attacks

on the 1969 and 1962 convictions are pending in federal

court. Carter now applies to the federal courts, seeking

to extricate himself from the procedural tangle the

habeas abstention rule has created. That tangle exists

because Carter must begin his collateral attack in the

state courts; the reason he may not bring his 1974 claim

to federal court to begin with is because he is required to

exhaust available state remedies first. Carter comes to

us now and states that he has presented his double

jeopardy claim to the state courts and that they have re-

jected consideration of it because of the habeas absten-

tion rule. He asks that we consider his claim exhausted,

which would free him from the Hobson’s choice the

habeas abstention rule would otherwise put him to. The

State of Texas argues that the Court of Criminal Ap-

peals has never passed on the claim because of the very

C-24

same habeas abstention rule; thus the State argues that

Carter’s double jeopardy claim cannot be said to be ex-

hausted.

The question before us is simple to state but difficult

to resolve: has Carter exhausted his state

remedies? Mechanical applications of prior exhaustion

doctrine will not answer this question for us, for Texas

presents us with a unique procedural situation. Instead

we must focus on the purposes underlying exhaustion

doctrine and consider what result is most in harmony

with those purposes. This we now proceed to do.

IV. THE BASIC FRAMEWORK OF EXHAUSTION

DOCTRINE: COMITY AND COMPROMISE.

The seminal case on the requirement of exhaustion is

Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868

(1886). In that case, the petitioner claimed that the

Virginia statute he had allegedly violated was un-

constitutional and sought federal habeas relief while he

was still awaiting trial. The federal circuit court

dismissed the writ and the Supreme Court affirmed. In

so doing, it stated the two principles upon which exhaus-

tion doctrine rests. The first principle is that the federal

courts always possess the power to grant the writ

without exhaustion due to the federal judiciary’s basic

purpose and duty of protecting and virdicating federal

constitutional rights.“ The second principle is that as a

matter of judicial discretion, federal courts should allow

the state courts the first opportunity to vindicate these

federal constitutional rights; in this way, due respect for

state institutions will be given and needless federal-

state interference avoided. 117 U.S. at 251, 6 S.Ct. at

740.

The exhaustion requirement was the response to an in-

evitable tension between state and federal interests

created by the historical importance of the Great Writ in

Anglo-American law and the system of dual sovereignty

C-25

at the heart of the American Constitution. The federal

interest was in a sure and speedy method of remedying

unconstitutional incarceration—for this was the very

purpose of the Great Writ—and since 1867, the federal

courts had been empowered to exercise that remedy

with respect to state convictions. The state interest, on

the other hand, was in an orderly functioning of its own

judicial processes without needless interference by the

federal government.

As it would be unseemly in our dual system of

government for a federal district court to upset a

state court conviction without an opportunity for

the state court to correct a constitutional violation,

the federal courts sought a means to avoid such col-

lisions. Solution was found in the doctrine of comi-

ty between courts, a doctrine which teaches that

one court should defer action on causes properly

within its juridiction until the courts of another

sovereignty with concurrent powers, and already

cognizant of the litigation, have had an opportunity

to pass upon the matter.

Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94

L.Ed. 761 (1950)(footnote omitted).

The comity spoken of in Darr v. Burford necessarily

involves a balancing of both state and federal interests,

of orderly state judicial administration and speedy vin-

dication of constitutional rights.’ The exhaustion doc-

trine is a compromise which reflects the interests and

needs of both federal and state systems. The principle

of comity means that the federal courts are not usually

able to grant an immediate remedy given the require-

ment of exhaustion. On the other hand, the state

judicial process can hear a petitioner’s constitutional

claims immediately and indeed has a duty to pass on

them every bit as great as the federal courts have.

In sum, the notion of comity which underlies the ex-

haustion doctrine must be understood not as a capitula-

C-26

tion of federal power to state interests; rather, comity in-

volves a delicate balance and compromise of both state

and federal concerns.“ For as much as the unchanneled

exercise of habeas corpus by the federal courts would

disrupt the integrity of the state criminal process, so too

would an unthinking subservience to stote sovereignty

ender the time-honored Writ of Liberty sterile and

nugatory. Comity requires sensitive accommodation,

and not simply slavish adherence, to the interst of the

states,

V. EXHAUSTION AS FAIR OPPORTUNITY,

The basic compromise which underlies all of exhaus-

tion doctrine require that the state courts be given the

first opportunity to pass upon the petitioner's federal

claims, Picard v. Connor, 404 U.S, 270, 275-276, 92

§.Ct, 509, 512, 30 L.Ed.2d 438 (1971). Exhaustion nor-

mally requires only that the federal claim have been

fairly presented to the highest court of the State, either

on direct review of the conviction or in a post-conviction

attack. Escobedo v. Estelle, 650 F.2d 70, 72 (5th Cir.),

modified on petition for rehearing, 655 F.2d 613 (1981);

Ogle u. Estelle, 592 F.2d 1264, 1267 (5th Cir, 1979);

Galtieri, supra, at 353-54, Thus, if the substance of the

petitioner's claims is brought to the state court's atten-

tion, the fact that the court does not explicitly pass on

the claims is irrelevant to the question of exhaustion,

because the opportunity to consider them has been

resented, Smith u, Digmon, 434 U.S, 332, 333-34, 98

Ct. 597, 598-599, 54 L.Ed.2d 582 (1978)(per curiam);

Francisco u., Gathright, 419 U.S. 59, 60, 95 S.Ct. 257,

258, 42 L.Ed.2d 226 (1974)(claim was exhausted even

though Virginia Supreme Court declined to review peti-

tioner’s conviction on direct appeal and affirmed by

order); Escobedo v, Estelle, supra, at 75 (dismissal by

Texas Court of Criminal Appeals without opinion

satisfied exhaustion requirement); Carr v. Alabama, 586

F. 2d 462 (5th Cir, 1978),

C-27

As a matter of comity the petitioner will usually be re-

quired to follow the normal appellate or post-conviction

procedural routes for raising his claim in the state's

highest court; the use of extraordinary writs or other ab-

normal or seldom-used avenues of relief is generally not

considered a proper method of exhaustion when normal

methods are available.“

If a petitioner wishes to exhaust his claims he is ex-

pected not only to use the normal avenues of relief but

also to present his claims before the courts in a pro-

cedurally proper manner according to the rules of the

state courts. Brown b. Estelle, 530 F.2d 1280 (5th Cir,

1976); Tooten v. Shevin, 493 F.2d 173 (5th Cir, 1974),

cert, denied, 421 U.S. 966, 95 S.Ct, 1957, 44 L. Ed. 2d 454

(1975). In Brown we held that the petitioner's applica-

tion for writ of mandamus to the Texas Supreme Court

did not meet the requirements of exhaustion, not

because the writ was not a proper avenue of relief in the

circumstances of the case, but rather because the ap-

plication was not submitted by an attorney as required

by Texas law. Because there was no reason to believe

that the petitioner would not be able to receive

assistance of counsel so that the application could be

properly made, the petitioner was required to comply

with the procedural rule.

However, Brown made clear that the requirement that

a petitioner should follow state procedual rules in ex-

hausting his claims is not an inflexible one; we would

not permit a state procedural rule or practice to

frustrate vindication of federal constitutional rights

where it is unfairly applied or puts an undue burden on a

potitioner. 530 F.2d at 1284. Thus with respect to the

state procedural rule involved in Brown the court states

that lil petitioner is unable to obtain the assistance of

counsel that ther, the Texas Supreme Court require[s]

„ we will deem these state remedies exhausted.“ Id.

C-28

The compromise of interests which underlies exhaus-

tion doctrine requires that the federal courts assure

themselves that the state courts have had a fair oppor-

tunity to pass on a petitioner's claims before they

assume habeas jurisdiction; however what constitutes a

fair opportunity” is not necessarity coextensive with

whatever procedual requirements the state may choose

to impose, That is the lesson of Brown b. Estelle, and

we have applied this reasoning repeatedly. F. g., Ogle v.

Estelle, supra; Houston b. Estelle, 569 F.2d 372 (5th Cir,

1978). In Houston, the Texas Court of Criminal Appeals

had refused to pass on the merits of some of the peti-

tioner’s claims because the introductory list of grounds

of error asserted in petitioner's state brief did not give

specific references to the pages in the record where the

alleged trial errors occurred, Because the brief thus fail-

ed to comply with the formal requirements of Tex. Code

Crim.Pro.Ann, art. 40.09, § 9 (West), the Court of

Criminal Appeals did not consider the claims even

though page references were present in the actual argu-

ment sections of petitioner's brief and even though the

State's brief in opposition was apparently perfectly able

to identify and discuss the portions of the record in

question, A panel of this circuit held that the petitioner

had exhausted state remedies as there could be no doubt

that a fair opportunity to pass on the claims was

presented to the Texas courts, 569 F.2d at 375-76, The

court acknowledged Texas’ right to prescribe procedual

rules such as the proper form of briefing, but stated that

it does not necessarily follow, however, that perfect

compliance with such rules of briefing is always a prere-

quisite to the exercise of federal habeas corpus jurisdic:

tion.“ We are in full agreement, The question of

whether a state has had a fair opportunity“ to consider

a petitioner's constitutional claims is one for the federal

courts to decide with all due respect for the integrity of

state judicial processes; whether the state believes it has

had an opportunity to pass upon the claims in light of its

various procedual requirements is an important factor

in this determination, but it is not dispositive,”

0.20

Brown u. stelle spoke of the problem of state pro-

codural rules which might unduly hinder or burden a

habeas petitioner and how exhaustion doctrine must

react with flexibiliy in such situations. These concerns

lead us to still another aspect of exhaustion doctrine

which is relevant to this case: The adequacy and effec-

tiveness of state remedial procedures in general.

VI. ADEQUACY AND EFFECTIVENESS OF

STATE PROCEDURES.

We have seen that the doctrine of exhaustion, an em-

bodiment of the principle of comity, is the result of a

delicate balancing of federal and state

interests. Underlying the compromise is the assump-

tion that although immediate access to a federal forum

for speedy resolution of federal claims is not possible,

the state court system will be able to address the peti-

tioner's claims as he works his way through that

system, Of course, this assumption itself rests upon a

still deeper one; namely, the belief that state courts are,

in good faith, equally willing and able to protect federal

constitutional rights as the federal courts. Indeed, Ex

parte Royall made that assumption explicitly when it

stated that the circumstances in the cases before it did

not

suggest any reason why the State court of original

jurisdiction may not, without interference upon the

part of the courts of the United States, pass upon

the question which is raised as to the constitu-

tionality of the statutes under which the appellant

is indicted. The Circuit Court was not at liberty,

under the circumstances disclosed, to presume that

the decision of the State court would be otherwise

than is required by the fundamental law of the land,

or that it would disregard the settled principles of

constitutional law announced by this court, upon

which is clearly conferred the power to decide

ultimately and finally all cases arising under the

Constitution and laws of the United States.

C-30

117 U.S. at 252, 6 S.Ct. at 740. Thus at the very core of

exhaustion doctrine is the requirement that state pro-

cedures be adequate and effective, for it is only because

these procedures are adequate to vindicate federal con-

stitutional rights that the forbearance of the federal

courts from swift consideration of habeas corpus claims

is justified. If the state procedures do not provide a

bona fide forum for a petitioner's constitutional claims

or merely delay and hinder ultimate resolution, the foun-

dations upon which exhaustion doctrine rests are

dissolved. The balancing of interests which is always in-

herent in the doctrine of comity then tips in favor of im-

mediate consideration of petitioner's claims through

federal habeas proceedings.

The present codification of the exhaustion require-

ment, 28 U.S.C. § 2254(b), speaks directly to this pro-

blem. It states that exhaustion of state remedies is re-

quired unless there is either an absence of available

State corrective process or the existence of cir-

cumstances rendering such process ineffective to pro-

tect the rights of the prisoner.’’ See Rose b. Lundy,

3 n.7, 102 S. Ct. 1198, 1202 n.7, 71

L. Ed. 2d 379 (1982) (exhaustion doctrine does not bar

relief where state remedies are inadequate); Preiser v.

Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973) (exhaustion requirement presupposes that

prisoner’s state remedy must be adequate and

available); Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073,

93 L.Ed. 1333 (1949) (same).“

It is because state procedures may not always be ade-

quate or effective that courts have treated the exhaus-

tion requirement with flexibility. In some cases where

the state procedures are found wanting the courts will

speak of the claims as not requiring exhaustion; in

others the claims are considered technically

exhausted. Galtieri, supra, at 354.

C-31

The exceptions to the exhaustion doctrine illustrate

the tension between the swift vindication of the peti-

tioner’s constitutional rights and the comity principles

undergirding the doctrine. Whether the reason for

reaching an unexhausted claim is termed a satisfaction

of or an exception to the doctrine, it is clear that the

federal court must weigh the conflicting interests served

by the federal writ of habeas corpus and by the exhaus-

tion doctrine before addressing the merits of an unex-

hausted claim. Exceptions to the exhaustion doctrine

have been developed judicially to cover situations where

mechanical adherence would not further the goals of the

exhaustion doctrine or would frustrate an overriding

federal concern.

Id. Thus, it has been held that exhaustion is not

necessary where resort to state remedies would be

futile’, because the necessary delay before entrance to a

federal forum which would be required is not justified

where the state court's attitude towards a petitioner's

claims is a foregone conclusion.“

The courts have also held that where the state pro-

cesses cause undue delays to the hearing of petitioner's

claims in special circumstances, a petitioner's claims

may be treated as technically exhausted. Once again,

this exception makes sense in the context of the underly-

ing compromise between swift vindication of rights

which is the purpose of the Great Writ and accommoda-

tion of the somewhat slower but normal judicial pro-

cesses of the state courts. Where the state processes are

unduly and unreasonably delayed through no fault of

the petitioner, the terms of the compromise must be re-

evaluated.”

Most important for our purposes, the exhaustion re-

quirement has not been applied mechanically where it is

shown that the state’s procedures for exhaustion are so

cumbersome, complex and confusing that they frustrate

good faith attempts to comply with them. The classic

C-32

statement of this principle is that of Justice Rutledge

concurring in Marino v. Ragen, 332 U.S. 561, 68 S.Ct.

240, 92 L.Ed. 170 (1947). Marino was one of a series of

cases in which the Supreme Court attempted, with only

partial success, to fathom the complexities of Illinois

remedial law.“ Justice Rutledge argued that the peti-

tioner in Marino should be considered to have exhausted

his remedies:

This rule, requiring exhaustion of state remedies as

a condition precedent to federal relief, has been

firmly established by repeated decisions of this

Court. Even in extreme situations its application

has been justified by sound administrative

reasons. But it has always been clear that the rule

may be applied only on the assumption that an ade-

quate state remedy is actually available... And it

would be nothing less than abdication of our con-

stitutional duty and function to rebuff petitioners

with this mechanical formula whenever it may

become clear that the alleged state remedy is

nothing but a procedural morass offering no

substantial hope of relief. Experience has convinc-

ed me that this is true of Illinois.

The trouble with Illinois is not that it offers no pro-

cedure, It is that it offers too many, and makes

them so intricate and ineffective that in practical ef-

fect they amount to none. The possibility of secur-

ing effective determination on the merits is substan-

tially foreclosed by the probability, indeed the all

but mathematical certainty, that the case will go off

on the procedural ruling that the wrong one of

several possible remedies has been followed.

C-33

The exhaustion-of-state-remedies rule should not be

stretched to the absurdity of requiring the exhaus-

tion of three separate remedies when at the outset a

petitioner cannot intelligently select the proper

way, and in conclusion he may find only that none of

the three is appropriate or effective.

The Illinois scheme affords a theoretical system of

remedies. In my judgment it is hardly more than

thecretical. Experience has shown beyond all doubt

that, in any practical sense, the remedies available

there are inadequate. Whether this is true because

in fact no remedy exists, or because every remedy is

so limited as to be inadequate, or because the pro-

cedural problem of selecting the proper one is so dif-

ficult, is beside the point. If the federal guarantee

of due process in a criminal trial is to have real

significance in Illinois, it is imperative that men

convicted in violation of their constitutional rights

have an adequate opportunity to be heard in

court. The opportunity is not adequate so long as

they are required to ride the Illinois merry-go-round

of habeas corpus, coram bis, and writ of error

before getting a hearing in a federal court.

Consequently, as far as I am concerned, the Illinois

remedies are exhausted here....

332 U.S. at 564-69, 68 S.Ct. at 242-244 (Rutledge, J.,

concurring)(footnotes omitted).

C-34

Although Justice Rutledge spoke for only three

justices in his concurrence to Marino v. Ragen, his

words and his reasoning there have been continually

cited with approval by the federal courts. E. g., Wilwor-

ding v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d

418 (1971); Codispoti v. Howard, 589 F.2d 135 (3rd Cir.

1978); Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.

1978); United States ex rel. Smith v. Jackson, 234 F.2d

742 (2d Cir. 1956). Thus, this ciruit has stated in its en

banc decision in Galtieri supra, that ſehchaustion ought

not be required when the ‘state procedural snarls or

obstacles preclude an effective state remedy. 582

F.2d at 354 n.12 (quoting Bartone v. United States, 375

U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963)).”

VII. HAS CARTER EXHAUSTED?

We now apply these principles to the case before

us. Carter argues that he presented his double jeopardy

claims in No. 178,126-C, and that this presentation gave

the Texas courts an adequate and fair opportunity to

pass upon these claims. The fact that the Court of

Criminal Appeals dismissed the petition without

reaching the merits is, he contends, of no consequence

under Smith v. Digmon. Thus, Carter argues, he has

met the requirements of exhaustion doctrine.

The State of Texas argues in response that this case

involves failure to abide by proper state procedures in

the manner in which Carter presented his claims; the

State relies on Brown v. Estelle and Tooten v. Shevin for

the proposition that this procedural defect prevents

Carter from claiming that he has exhausted state

remedies. It is important to understand what this argu-

ment amounts to. The State of Texas is not arguing

that Carter had chosen an abnormal path in reaching the

Texas Court of Criminal Appeals to present No.

178,126-C. Nor does the State argue that No. 178,126-C

was not properly filed in the original convicting court

and properly appealed to the Court of Criminal

C-35

Appeals. Nor does Texas argue that the form of briefing

was inadequate or that Texas courts were unaware of

the substantive nature of Carter's claims. Indeed the

only procedural defect which the State of Texas seems

to be able to point to is that Carter filed his state habeas

ptition while No. 74-H-1603-A was pending in the

federal courts; Carter thus became the victim of a new

extension of the principles of Ex parte Green, hitherto

unannounced, and applied for the first time in his

case. Nevertheless, the State of Texas argues that

whether newly developed or not, the habeas abstention

doctrine prevents the Texas courts from passing upon

Carter’s double jeopardy claim; therefore it cannot be

said that Texas has had a real opportunity to consider

the claim, and hence Carter cannot be said to have ex-

hausted it.

Yet this argument proves too much. If the result of

the Texas habeas abstention rule is as the State says it

is—if the Court of Criminal Appeals has absolutely no

choice in the matter but may not consider Carter’s dou-

ble jeopardy claim on the merits—the conclusion to be

drawn from this is not that Carter has not exhausted

but that he had no available state remedy at the time he

filed No. 178,126-C. And if his application and its subse-

quent dismissal proves that he has no available state

remedy, he must be considered to be exhausted. 42

U.S.C. § 2254(b) and (c).

The State argues in reply to this that, on the contrary,

Carter did, and still does, have an available state

remedy. Carter cannot be said to have exhausted his

state remedies because the Texas courts are willing to

hear his claims as soon as his federal litigation is finish-

ed or dismissed. The fact that this litigation may drag

on for years, or that substantial judicial resources have

already been expended by the federal courts and would

be wasted by a dismissal is claimed to be irrelevant. As

long as the Texas courts are willing to hear Carter's

claims if they are presented in a procedurally proper

C-36

fashion (i.e., with no federal claims pending), Carter can-

not be said to have offered the state courts a fair oppor-

tunity to pass upon his state claims.

The State’s argument is based upon a set of assump-

tions which we think inconsistent with the purposes of

the Great Writ. Restated, the argument is that an

available state remedy is not open to Carter now, but

will be at some point in the future. The remedy will

become available when Carter finishes his federal litiga-

tion. If Carter is unwilling to wait that long, it is his

choice to dismiss his federal claims. At that point, the

state will consider his attack on the 1974 conviction.

This argument begins with the idea that a state

remedy which is not now available to a petitioner but

will be at some point in the future requires the petitioner

to wait until the remedy does become available. But

this assumption has never formed a part of exhaustion

doctrine. A petitioner must, of course, comply with pro-

per state procedures in applying for presently available

remedies offered by the state. However, the fact thata .

state remedy may be theoretically available at some dis-

tant point in the future does not require a petitioner to

languish incarcerated until state procedures are com-

plied with. An instructive example of this is Peyton v.

Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426

(1968). In Peyton, the United States Supreme Court

overturned the “‘prematurity”’ rule of McNaily v. Hill,

293 U.S. 131, 55 S.Ct. 24, 70 L.Ed. 238 (1934), which

stated that a petitioner serving the first of two con-

secutive sentences could not attack the second sentence

on habeas corpus. After Peyton, it was no longer

necessary for a petitioner to wait until the second

sentence had officially begun before a federal court

would consider him in custody under that sentence

and thus a proper applicant for habeas corpus relief.

However, the decisicn in Peyton raised a crucial issue

of exhaustion doctrine. Many states still had a similar

C-38

It may be objected that Peyton v. Rowe and its

related cases are distinguishable upon a very important

ground. In Peyton, the petitioner who wished to attack

his second sentence in the state courts had no choice

regarding how long he would have to wait before he

could bring his state claim given the state’s prematurity

rule: That decision was made for him by the length of

the first sentence he was then serving. On the other

hand, Carter can have his state claims relating to his

1974 conviction heard any time he wants to: he need on-

ly dismiss his federal suit attacking the 1969 and 1962

convictions. The key to the state courthouse is in his

hands, so to speak. If he does not wish to have his state

claim heard immediately, that is his choice and he must

bear the consequences of it.

We think this argument misses the point. The crux of

the matter is whether is it legitimate for a habeas peti-

tioner to be put to such a choice in the first place. The

rule just described permits federal adjudication of the

habeas claims relating to all three convictions to be held

hostage to the demands of the Texas habeas system. As

has been stressed before, comity and federalism require

sensitive accommodation of competing interests by

both the states and the national government. Each

must give due respect for the other’s needs and

goals. Here, the state habeas rule would greatly hinder

speedy federal court consideration of either Carter’s

1974 conviction or his earlier convictions, depending

upon the course he chooses.

We have spent a considerable amount of time earlier in

this opinion explaining how the Texas habeas absten-

tion rule creates a procedural logjam which delays

potentially meritorious claims, burdens litigants who

seek a federal forum for claims already dismissed by the

States, acts as a snare for the unwary and wastes the

judicial resources of the federal courts. All of these pro-

blems with the rule are present in this case. We think

the choice which Texas seeks to put Carter to is

C47

prematurity rule restricting access to state habeas pro-

cedures until service of the sentence under attack was

properly begun. See generally Note, Habeas Corpus and

the Prematurity Rule, 66 Colum.L.Rev. 1166-68

(1964). In a state which retained the prematurity rule, a

strict view of the exhaustion requirement would still

have forced the petitioner to delay his application for

federal relief. This is because state remedies would

eventually be available as soon as all prior sentences

have been served, and federal relief was not available un-

til state remedies were exhausted.

The Supreme Court dismissed this possible interpreta-

tion of exhaustion doctrine in Peyton v. Rowe. Noting

that Rowe had filed an application in Virginia state

court which was denied under Virginia’s version of the

prematurity rule, the Supreme Court described Rowe as

having exhausted state remedies. 391 U.S. at 56 & n.2,

88 S.Ct. at 1550 & n.2. Similarly, other federal courts

had construed exhaustion doctrine as not requiring that

the petitioner comport with a state’s prematurity rule

before seeking relief in federal court: Williams v. Peyton,

372 F.2d 216 (4th Cir. 1967); Pannell v. Peyton, 287

F.Supp. 858 (W.D.Va. 1968); see Via v. Peyton, 284

F.Supp. 961 (W.D.Va.1968) (state prisoners seeking to

attack future sentences have no effective remedy in the

courts of Virginia, and are not requried to exhaust

remedies where circumstances make remedies ineffec-

tive and futile). However, once Virginia changed its

habeas corpus remedy to abolish the prematurity rule,

the federal courts once again deferred to the state courts

on the grounds of comity. See Strouth v. Peyton, 404

F.2d 537 (4th Cir. 1068) (Although at the time of filing of

original habeas petition, no remedy existed in state

court, abolishment of state prematurity doctrine, expan-

sion of available remedies in state courts, doctrine of

comity and fact that the petitioner presently had peti-

tion pending in state court made abstention by federal

court the better course.).

C-39

untenable; it cannot be considered to present him with

an adequate and effective state remedy, and exhaustion

doctrine does not require us to hold otherwise. Instead,

we hold that when Carter’s petition No. 178,126-C was

dismissed from the Texas Court of Criminal Appeals,

there was at that point no available state remedy which

was also an adequate remedy.” Thus he has met the re-

quirements of §§ 2254(b) and (c).”

Our holding is limited to the facts before us, and

should not be read to encourage bad faith attempts by

petitioners to place themselves in procedural snarls

deliberately in a attempt to bypass state consideration

of their claims on the merits.” It seems clear to us that

the expansive reading which the Texas Court of

Criminal Appeals gave to its state abstention doctrine

in this case could not have been predicted by Carter, and

it is not reasonable to suggest that he cleverly arranged

matters so as to be in the position he now finds himself

in.

It is enough for us in this case to say that Carter has

brought his double jeopardy claim to the state courts,

the state courts have dismissed this claim (among

others), and he has at present no adequate and effective

state remedy available to him. Carter has exhausted the

claim he has brought to us and we now consider it on the

merits.

VIII. THE DOUBLE JEOPARDY CLAIM.

As we recounted at the beginning of our opinion,

Carter was indicted and convicted for embezzlement in

1972. This conviction was reversed in 1974 by the Court

of Criminal Appeals because of a failure by the state to

prove that the owner of the embezzled funds was the

same as that alleged in the indictment. Carter v. State,

510 S.W.2d 323 (Tex.Cr.App.1974). Carter was subse-

quently reindicted, tried and convicted in 1974. It is

this conviction he seeks to overturn.

C40

The factual background and the reasons for the rever-

sal of the 1972 conviction are described concisely in the

Court of Criminal Appeals’ opinion in Carter u. State; we

quote the relevant portions:

The State's proof was that Andrew Dolce was the

president of Consolidated Productions, Incor-

porated, a seller of plastic toys and animals, and

that appellant was employed as a sales represen-

tative for that corporation, by virtue of which, so

Dolce testified, appellant became his agent, Ap-

pollant's duties consisted of calling on and securing

orders for the plastic items from schools and related

organizations interested in selling the items in fund

raising projects. Generally the orders secured were

entered on an order form on which there was a pro-

minently printed notice that all checks were to be

made payable to Consolidated Productions, Inc.

Some of the checks issued in payment for orders

secured by appellant were made payable to and

received by Consolidated Productions, Inc,;

however, other checks were made payable to either

the corporation and appellant or to appellant and

were received by appellant, These latter checks

were deposited in a bank account and withdrawn by

appellant; the proceeds from these checks were not

received by the corporation, The office manager of

the corporation testified that all payments should

have been remitted to the corporation, and that asa

result of appellants's activities, the corporation sus-

tained a loss of approximately $40,000, Andrew

Dolce testified that, although appellant had authori-

ty to receive the checks in his capacity as agent and

remit the money to the corporation, he did not give

appellant authority or permission to convert the

checks to his own use and benefit, Dolce was not

asked if, and he did not testify that, he was the

owner of the money alleged to have been embezzled

Coll

by appellant, or that, as president of the corpora-

tion, he had the care, control and management of

such funds,

In brief, the trial court charged the jury to find

appellant guilty if they found that appellant was the

agent and employee of Andrew Dolce and that he

did embezzle and convert to his own use without the

consent of Dolce the money belonging to Dolce that

had theretofore come into the possession of ap-

pellant by virtue of his employment at such agent

and employee,

Having alleged ownership of the money to be in

Andrew Dolce, the State was required to prove that

essential allegation, Lasley uv. State, 167 Tex. Cx. R.

156, 319 8. W. 2d 325 (1969)

510 S. W. 2d at 325-26, The Court of Criminal Appeals

added that the State could, had it chosen, have re-

quested an instruction that Dolce could be held to be a

special owner of the funds and upon proof of special

ownership, there would be no variance under the doc-

trine of Lawhon bv. State, 429 S.W.2d 147

(Tex.Cr.App.1968), cert. denied, 394 U.S, 989, 89 S.Ct.

1475, 22 L.Ed.2d 764 (1969). However, the court found

that not only had the State not requested a special

ownership instruction, but even had the instruction

been given there was insufficient evidence of special

ownership,

In Burks u. United States, 437 U.S, 1,98 S.Ct, 2141, 57

L. Ed. 2d 1 (1978), the Supreme Court held that reversal

of a conviction by an appellate court for evidentiary in-

sufficiency creates a bar to reprosecution under the dou-

ble jeopardy clause, This interpretation was applied to

the states in the companion case of Greene u., Massey,

437 U.S. 19, 98 S.Ct, 2151, 57 L.Ed.2d 16 (1978), Carter

asserts that Burks and Greene apply to the reversal in

Carter v. State, and that the subsequent 1974 conviction

violated the double jeopardy clause.

Car

The ownership of the funds Carter embezzled was an

essential element of the offense charged. Carter v.

State, supra, In Easley v. State, 167 Tex. Cr. R. 156, 319

S. W. 2d 325 (1959), relied on in Carter, the Court of

Criminal Appeals explained that ‘‘[iJt was the province

of the state to so allege ownership, but in doing so it

assumed the burden of establishing and proving owner-

ship as alleged. Jd. The Court of Criminal Appeals

held that the State failed to offer evidence of the owner-

ship as alleged, It therefore reversed, This action by

the Court of Criminal Appeals was a ruling by that court

‘whatever its label, [which] actually represents a resolu-

tion [in the defendant's favor], correct or not, of some or

all of the factual elements of the offense

charged. United States b. Scott, 437 U.S, 82, 97, 98

8. Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting United

States u. Martin Linen Supply Co, 430 U.S. 564, 571, 97

S. Ct. 1349, 1354, 561 L.Ed.2d 642 (1977) (bracketed

material added in Scott)), Because the State failed in its

proof of the ownersip of the funds, the case should never

have gone to the jury. Hence, under Burks, the reversal

is the equivalent to a directed verdict of acquittal by the

trial judge. 437 U.S. at 16-18, 98 S.Ct. at

2149-2150. Accord, Bullard v. Estelle, 665 F.2d 1347,

1354 (5th Cir, 1982), Double jeopardy thus applies; the

1974 retrial and conviction was constitutionally imper-

missible,

The State of Texas attempts to avoid this conclusion

by claiming that the reversal of the 1972 conviction was

for trial error, Under the doctrine of Burks, a reversal of

a conviction because of insufficiency of the evidence is to

be treated as an acquittal, but there is no double jeopar-

dy bar if the reversal is for trial error, Examples given

in Burks of such trial errors are reversal for incorrect

receipt or rejection of evidence, incorrect or prejudicial

instructions and prosecutorial misconduct, 437 U.S. at

14-15 & n.8, 98 S.Ct, at 2148-2149 & n.8.

CAS

{Rjeversal for trial error, as distinguished from

evidentiary insufficiency, does not constitute a deci-

sion to the effect that the government has failed to

prove its case. As such, it implies nothing with

respect to the guilt or innocence of the

defendant. Rather, it is a determination that a

defendant has been convicted through a judicial

process which is defective in some fundamental

respect ...

437 U.S, at 15, 98 S.Ct, at 2149.

Texas seeks to characterize the error in Carter's 1972

trial as one not of failure of proof of an essential element

but merely as failure as to the manner of proper

proof, This argument is based upon an interpretation of

Compton v. State, 607 S.W.2d 246, 249

(Tex. Cr. App. 1980) (en banc) (on motion for rehearing),

cert, denied, 450 U.S. 997, 101 S.Ct. 1701, 68 L. Ed. 2d

197 (1981). In Compton, the defendant had been in-

dicted for theft of $10,000." The indictment alleged

that the money was owned by a J. Howard Coonen.

Coonen was a regional manager for International

Harvester Corporation, and the proof at trial showed

that the funds taken were those of International

Harvester. The conviction was originally reversed by

the Court of Criminal Appeals and a judgment of acquit-

tal was entered, with the Court citing to Burks and

Greene, 607 S.W.2d at 249. On rehearing, the Court of

Criminal Appeals reversed its earlier decision and af-

firmed the conviction, It did so on the basis of a reinter-

pretation of the meaning of the word owner“ as

generally defined in the Texas Penal Code. Under

Tex. Pen. Code Ann. § 1.07(a)(24)(West), the owner of pro-

perty is one who has (1) title, (2) possession, or (3) a

greater right to possession than the defendant. Prior

case law had held that alternative (3) only applied in

cases of joint interest in the property between the

owner“ and the defendant. E.g., McGee v. State, 572

S. W. 2d 723 (Tex.Cr.App.1978). This meant that in most

C44

cases the ownership alleged in the indictment could ony

be demonstrated by showing title or possession, or else

relying on a theory of special ownership. None of these

demonstrated in the 1972 conviction. In Compton,

however, the Texas Court of Criminal Appeals overruled

McGee and held that ownership could be established by

showing a greater right to possession even though there

was no showing of a joint interest.

The State of Texas has not argued that because the

law regarding the definition of ownership changed with

Compton, Compton should be given retroactive applica-

tion, that the decision in Carter v. State was in error, and

double jeopardy should not attach. Nor would such an

argument succeed. Double jeopardy barred reprosecu-

tion immediately after reversal by the appellate court,

this being equivalent to an acquittal by the trial

judge. As stated above the requirement for double

jeopardy to attach is that there be a resolution [in the

defendant's favor], correct or not, of some or all of the

factual elements of the offense charged. Scott, supra,

437 U.S. at 97, 98 S.Ct. at 2197 (quoting Martin Linen,

supra, 430 U.S. at 571, 97 S.Ct, at 1354) (emphasis add-

ed). Thus even were the appellate court’s decision based

upon a wrong view of the law as understood at the time

of the decision, double jeopardy would attach if the

reversal were based on a perceived insufficiency of the

evidence. See Bullard v. Estelle, supra, at 1355 n.17 (ac-

quittal by jury, trial judge, or appellate court have all

been given same effect by Supreme Court). See also

Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct.

2170, 2178, 57 L.Ed.2d 43 (1977) (fundamental nature of

the double jeopardy rule is manifested by its explicit ex-

tension to situations where an acquittal is based upon a

egregiously erroneous foundation); Scott, supra, 437

U.S. at 98, 98 S.Ct. at 2197 (fact that acquittal may

result from erroneous evidentiary rulings or erroneous

interpretations of governing legal principles affects ac-

curacy of determination but not its essential character

as an acquittal).

C-45

Texas’ argument based on Compton is not one of

retroactivity; rather the state seeks to use Compton to

show that the definitions of ownership in § 1.07(a)(24) go

not to the element of the offense which must be alleged

and proven but only to the manner of proving

them, The elements remaining unchanged after Comp-

ton, argues the State; it is only the manner of proof“

which has been expanded. The State concluded that

manner of proof“ is a problem akin to admissibility of

evidence rather than evidentiary sufficiency. Since

reversals based on errors of admissibility of evidence are

reversals based on trial error, the argument goes, so

should reversals based on manner of proof.“

We think that the State’s argument is based upon a

distinction without a difference. It is true that since

Compton it is easier to prove a case of theft in a cor-

porate context than it was previously. But the reason

for this is that the substantive scope of the offense has

been enlarged. As the Court in Compton made clear, it

was basing its decision on the view that the

Legislature intended to expand the class of individuals

to be protected from theft. 607 S. W. ad at 250-51. (em-

phasis added). Manner of proof’ is expanded only in-

sofar as the elements of the offense are also expanded

though statutory interpretation. Because the element

of ownership now comprehends more potential persons

who may be mentioned in the indictment, the State now

has an increased number of ways to prove its case. But

prove it it must; having alleged an owner, it must offer

testimony of particular facts to support its

allegations. In other words, we deal here not with a

question of evidentiary admissibility or of a defect in the

trial procedures, but a question of whether certain

facts existed and , an appellate determination of insuf-

ficient evidence at [the] proceeding to establish those

facts. Bullard, supra, at 1354.

We are confirmed in this view by the action of the

Texas Court of Criminal Appeals in Compton

C-46

itself. Before rehearing, the Court of Criminal Appeals,

using the older interpretation of ownership (and the one

applied in Carter v. State), had held that the State had

failed in its proof of ownership and had dismissed the

case for evidentiary insufficiency. The court then held

that Burks and Greene were a bar to

reprosecution. Had the Texas Court of Criminal Ap-

peals viewed the case as involving only trial error, it

would not have invoked Burks and Greene to reverse the

judgment to one of acquittal. We are of course not re-

quired to accept without question the state court’s own

characterization of what constitutes trial error as oppos-

ed to evidentiary sufficiency, Bullard, supra, at 1359-60;

however in this case the characterization conforms with

our own view and is moreover consistent with language

in Carter v. State, supra, and Easley v. State, supra. We

thus are able to defer to this characterization with some

confidence. Compare Bullard, id. & n.25 with Tapp v.

Lucas, 658 F.2d 383, 385 (5th Cir. 1981) (federal court

could and would defer to a state court's view of error as

trial error which was clearly a correct characterization).

The State of Texas argues that there can be no insuffi-

ciency of the evidence of constitutional magnitude, rely-

ing on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979); the State argues that a rational

trier of fact could certainly have found Carter guilty at

his first trial; hence double jeopardy should not attach

even after the Texas Court of Criminal Appeals reversed

for evidentiary insufficiency.

Reliance on Jackson b. Virginia is misplaced. We re-

jected the same argument when it was made in

Bullard. 655 F.2d at 1360 n.27.

The State of Texas’ final argument is that, assuming

that the proof offered by the State was technically in-

sufficient“ at Carter's first trial, the proper remedy is to

give Carter a second trial. Because the defect at his first

trial was remedied at the 1974 trial, the jury properly in-

C-47

structed and sufficient proofs given, the State argues

that Carter has already received the only remedy which

is due him. The State argues that invalidating the se-

cond trial gives Carter an unjust windfall after he has

already received the benefit of a second trial, which is all

that the Constitution should require.

This argument stands the double jeopardy clause on

its head. If Carter has received a verdict of acquittal (or

its equivalent under Burks: a finding of evidentiary in-

sufficiency from a trial or appellate court), double

jeopardy automatically attaches. At the risk of belabor-

ing the obvious, this means that he may not be brought

to trial again on the same charge. E.g., Burks, supra,

437 U.S. at 11, 98 S.Ct. at 2147; Green v. United States,

355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199

(1957). The purported fairness of any second trial is

wholly irrelevant. For the second trial is not the

remedy—it is the violation itself.

The sum of our analysis in this opinion leads to a

single conclusion: Carter’s 1974 trial and conviction

violated the double jeopardy clause of the fifth amend-

ment, as applied to to the states through the fourteenth

amendment. The judgment of the district court, gran-

ting Carter a writ of habeas corpus, is affirmed.

AFFIRMED.

1.

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Cause No. 74-H-1603 has an extremely complicated history

which we have not discussed in the above text, as the facts essen-

tial to the legal issues before us are complicated enough. A brief

description, however, will give the reader some idea of the pro-

cedural skirmishing on both sides and the considerable judicial

resources which have been expended in the process. No.

74-H-1603 was originally styled Carter v. Heard; later custody of

Carter was transferred from the Harris County Jail to the Texas

State Correctional System, and W.J. Estelle was substituted as

Respondent. At this point, there were two habeas petitions styl-

ed Carter v. Estelle, the first one, No. 73-H-732, attacking the

1969 conviction, and the second, No. 74-H-1603, attacking the

1974 conviction. The attack on the 1969 conviction in No.

73-H-732 included an attack on the 1962 conviction used to

enhance the 1969 conviction. A third Carter v. Estelle, Cause No.

76-H-19, sought restoration of lost prison good time“

credits. At one point, there were a total of eight habeas petitions

filed by Carter against respondent Estelle pending in the federal

courts. See Carter v. Telectron, Inc.,452 F.Supp. 944 (S. D. Tex.

1977).

Carter then began to file a series of amended petitions in No.

74-H-1603. On March 24, 1975, he filed a Motion for Leave to

File a Third Amended Petition. This motion restated all of the

claims asserted in the original petition and incorporated all of the

grounds for attacking the 1969 conviction which were alleged in

No. 73-H-732. Contemporaneous with the filing of the motion,

Carter voluntarily dismissed No. 73-H-732. Apparently Carter

was seeking to litigate all his claims against both the 1969 and

1974 convictions in one federal habeas proceeding.

At this point, the State of Texas filed a series of seven motions

over a period of three years repeatedly requesting that No.

74-H-1603 be dismissed for failure to exhaust state

remedies. The State of Texas argued that no state remedies had

been exhausted in the 1974 conviction (No. 178,126), and that

Carter had filed only one habeas petition attacking the 1969 con-

viction (No. 137,784). This petition, No. 137,784-A, did not plead

the substantive grounds relied on in the federal attack on the

1969 conviction; rather, it only raised a jail time credit question.

On November 22, 1976, District Judge Woodrow Seals issued

an order in No. 74-H-1603. The District Judge stated that, as it

had been informed by the parties in open court that no Texas

Court had yet addressed petitioner's contentions under the provi-

sions of Section 11.07, Texas Code of Criminal Procedure [the

C-49

Texas habeas statute], the proceedings in 74-H-1603 would be

stayed until Carter has made a good faith effort to exhaust state

remedies. This stay did not include the several attacks on the

1962 conviction also present in No. 74-H-1603, but this fact had

no effect on subsequent proceedings. See, n.5, infra. On October

13, 1977, No. 74-H-1603 was transferred to the docket of Judge

Finis E. Cowan.

. The first habeas challenge, No. 178,126-A, had alleged many of

the same claims as No. 74-H-1603. It was dismissed by the

Texas Court of Criminal Appeals on February 2, 1977, because

No. 74-H-1603 was still pending in federal court. As we discuss

more fully later on, Texas law prevents the Texas courts from

passing on claims in a habeas case where an application for the

same relief is pending in the federal courts. Ex parte Green, 548

S.W.2d 914 (Tex.Cr.App.1977).

. The State of Texas argued that should this court decide that

state remedies were not exhausted with respect to the double

jeopardy claim, Carter would have to dismiss No. 74-H-1603-A in

order to proceed in state court. To avoid waste of judicial

resources in No. 74-H-1603-A, the court was asked to stay its

hand to see whether Carter would in fact dismiss. This argument

neglected the fact that swift consideration of No. 74-H-1603-A

might also moot the issues in this case; however, the stay was

granted and we must now attempt to clear up the resultant traf-

fic jam.

The State of Texas has now argued before this court that we

should reverse the district court for refusing to stay the present

case until No. 74-H-1603-A is litigated. Texas has already gotten

one stay in No. 74-H-1603-A; we see no reason to stay this litiga-

tion as well. Rather, we think it is time for someone to begin the

process of resolving this enormously complicated situation.

The completely different approach which the federal courts

take with respect to the problem of concurrent state and federal

habeas proceedings is well illustrated by our decision in Escobedo

v. Estelle, 650 F.2d 70, modified on petition for rehearing, 655

F.2d 613 (5th Cir. 1981). In Escobedo, the petitioner exhausted

his state habeas remedies with respect to an attack on his 1970

felony theft conviction, and then brought a federal habeas peti-

tion alleging the same claim as his state petition. However in the

meantime, the petitioner had been convicted of burglary in 1977

and the 1970 conviction had been used for enhancement pur-

poses. The petitioner appealed his 1977 conviction in the state

C-50

courts, raising once again his challenge to the 1970 conviction us-

ed for enhancement; this appeal was pending when the petitioner

brought his federal habeas action attacking the 1970 conviction

on the same grounds.

The magistrate to whom the federal habeas petition was refer-

red acknowledged that the attack on the 1970 conviction had

already been made by the petitioner and rejected by the Texas

courts through the Texas habeas procedures. However, the

magistrate recommended that the interests of comity and sound

judicial administration would be served if the federal courts abs-

tained from consideration of the petitioner's claim as the pending

state appeal of the 1977 conviction raised the same issue. The

district court followed this recommendation and dismissed

without prejudice.

On appeal, a panel of this circuit rejected this view. It held

that as long as the petitioner's claim had been fairly presented

once to the state courts, the exhaustion requirement was

satisfied. The fact that the state court was again considering the

same claim simultaneously with the federal courts did not rob the

latter of the ability to pass upon the claim. 650 F.2d at 74. The

panel initially reversed the district court, but, on rehearing, af-

firmed the dismissal of the petition on the grounds that the

custody requirements of § 2254 had not been met. Escobedo v.

Estelle, 655 F.2d 613 (5th Cir. 1981).

Although No. 74-H-1603-A was primarily a challenge to the

1969 conviction, it included attacks on the 1962 conviction as

well. Judge Seals had stayed consideration of all claims except

those challenging the 1962 conviction pending Carter's attempt

to exhaust state remedies. After the severance, which disposed

of the challenges to the 1974 conviction, what remained in No.

74-H-1603-A were attacks on the 1969 conviction, which had

previously been stayed, and attacks on the 1962 conviction,

which had not been stayed but upon which no further proceedings

had taken place.

. Moreover, the Court of Criminal Appeals’ opinion in No.

178,126-B did state that it would dismiss because Carter was at-

tacking the same conviction (No. 178,126) in state and federal

court.

As stated earlier, the identity of the claims raised in federal and

state court is apparently irrelevant for the purposes of Ex parte

Green. It is enough that both pending actions deal with the

same matter, i.e., the same conviction.

C-51

8. That the requirement of exhaustion is not based on lack of

jurisdictional power to issue the writ but rather is an accom-

modation of state interests has been reaffirmed many

times. E. g., Fay v. Void, 372 U.S. 391, 420, 83 S.Ct. 822, 838, 9

L.Ed.2d 837 (1963); Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct.

442,446, 83 L.Ed. 455 (1939); Galtieri v. Wainwright, 582 F.2d

348, 354 (5th Cir. 1978).

9. The Supreme Court has explained that:

The exhaustion doctrine is a judicially-crafted instrument

which reflects a careful balance between important interests of

federalism and the need to preserve the writ of habeas corpus

as a “swift and imperative remedy in all cases of illegal

restraint or confinement. Secretary of State for Home Af-

fairs v. O'Brien, 1923] A.C. 603, 609 (H. L.).

Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct.

1123, 1127, 35 L.Ed.2d 443 (1973). Cf. Younger v. Harris, 401

U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), in which

Justice Black eloquently stated the principles upon which Our

Federalism”’ rests:

The concept does not mean blind deference to State's

Rights” any more than it means centralization of control over

every important issue in our National Government and its

courts. What the concept does represent is a system in which

there is sensitivity to the legitimate interests of both State and

National Governments, and in which the National Govern-

ment, anxious though it may be to vindicate and protect

federal rights and federal interests, always endeavors to do so

in ways that will not unduly interfere with the legimate ac-

tivities of the States.

10. Another example of the compromise is the fact that while state

judicial process is allowed to proceed without interference from

the federal courts, the state process is not completely immune

from federal supervision. After exhaustion of state remedies, a

petitioner may still go into a federal forum to have his federal

claims heard again, even if fully and fairly litigated by the state

courts, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469

(1953), and even though this denial of res judicata effect might in

other contexts show an insufficient respect for state

judgments. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66

L.Ed.2d 308 (1980). It is interesting to note that this aspect of

the compromise continues to be finetuned by succeeding deci-

C-52

sions of the Court. See Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037, 49 L.Ed.2d 1067 (1976)(full and fair litigation of Fourth

Amendment claims in the state courts will preclude later federal

collateral attack).

The careful balancing of state and federal interests is present

throughout exhaustion doctrine. For example, the principle that

state should be given the right to consider constitutional claims

using the complete corpus of state judicial machinery might, if

taken to its full extreme, be thought to preclude habeas relief

whenever any state remedy remains available. Thus, after ex-

hausting appellate remedies, a petitioner would be relegated to

the state’s own habeas procedures, and then to repeated habeas

applications if those were permitved. However, the Supreme

Court has rejected that view and has not extended the principle

that far. All that comity requires is that the issue is question

have been presented once to the state’s highest court, either on

appeal or on collateral attack, and repeated applications, even if

permitted by state law, are not necessary. Wilwording v. Swen-

son, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Roberts v.

LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Brown

v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Nor is

exhaustion necessary if the state’s interpretation of federal law

changes between the exhaustion of state remedies and the filing

of a petition for federal habeas corpus. Galtieri v. Wainwright,

582 F.2d 348 (5th Cir. 1978). However, this circuit has

understood the principle that the state courts be given the first

right of consideration to extend to cases where there is a change

which provides an effective state procedure or there is a fun-

damental change in federal interpretation of substantive federal

law between the original exhaustion of state remedies and the fil-

ing of the federal petition. Jd. In such cases, this circuit has

struck the balance in favor of a return to state procedures.

The balancing of federal and state interests extends even to

questions of the substantive scope of habeas relief. Compare

Rose v. Mitchell, 443 U.S. 545, 562, 99 S.Ct. 2993, 3003, 61

L.Ed.2d 739 (1979), with Stone v. Powell, 428 U.S. 465, 491 n. 31,

96 S.Ct. 3037, 3051, n. 31, 49 L.Ed.2d 1067 (1976)(considerations

of federalism different with respect to habeas enforcement of

judicially-created rule of exclusion in Fourth Amendment and en-

forcement of Fourteenth Amendment rights against jury

discrimination where former has only recently been applied to

states and is only a judicially-created remedy and latter are

directly applicable to states and are personal constitutional

rights). Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

C-53

L.ed.2d 594 (1977)\enforcement of state-created contem-

poraneous objection rule in habaes cases dictated by principles of

federalism and comity).

11. E.g. Pitchess u. Davis, 421 U.S. 482, 488, 95 S.Ct. 1748, 1752,

44 L.Ed.2d 317 (1975)(per curiam)(application for writ of prohibi-

tion denied by California Supreme Court could not be fairly read

as an adjudication on the merits of the claim presented; state

remedies held not exhausted where claim could be raised on nor-

mal post-trial direct appeal); Ex parte Hawk,321 U.S. 114, 116,

64 S.Ct. 448, 88 L.Ed. 572 (1944)(application for extraordinary

writ did not serve to exhaust state remedies where normal state

channels for review were available); Tooten v. Shevin, 493 F.2d

173 (5th Cir. 1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1957, 44

L.Ed.2d 454 (1975)(denial of writ of prohibition to the Florida

Supreme Court prior to state trial was insufficient for purposes of

exhaustion where trial and appellate courts in Florida had yet to

consider merits of claim).

12. See also Lenza v. Wyrick, 665 F.2d 804 (8th Cir. 1981)(peti-

tioner’s point raised in brief did not state wherein and why”’

trial court erred in conformity with state procedural rules; claims

held exhausted since substance of the complaint was before the

state court); Morrow v. Wyrick, 646 F.2d 1229 (8th Cir.) cert.

denied, U. S., 102 S.Ct. 401, 70 L.Ed.2d 216 (1981)(same); Tif-

ford v. Wainwright, 588 F.2d 954 (5th Cir. 1976)(failure by peti-

tioner to produce a trial transcript due to indigency did not rob

Florida courts of a fair opportunity to consider his claims).

13. We hasten to point out that the question whether a petitioner

has sufficiently complied with state procedures in raising his

claims is a different one from the question of procedural default

and waiver which was considered in Fay v. Void and later in

Wainwright v. Sykes. Engle v. Isaac, U.S. - at n.28, 102

S.Ct. 1558, at 1570 n.28, 71 L.Ed.2d 783 (1982); Wainwright,

supra, 433 U.S. 72, 78-81, 97 S.Ct. 2497, 2502-2503, 53 L.Ed.2d

594 (distinguishing the exhaustion requirement from the issue of

procedural default). Wainwright v. Sykes deals with the problem

of when the petitioner's failure to raise a timely objection at trial

creates an adequate state ground which prevents consideration of

the petitioner's federal constitutional questions. In fact, the rule

in Sykes presupposes that at the time the petitioner files his

habeas petition in federal court, he has no availble state remedy,

because the contemporaneous objection rule prevents further

consideration of his claims by the state courts. Thus when Sykes

applies, the petitioner's claims are likely to be exhausted within

C-54

the meaning of § 2254(b). See Engle v. Isaac, supra, at n. 28.

102 S.Ct. at 1570 n.28. Conversely, in the procedural default

situation with which exhaustion doctrine is concerned, the peti-

tioner has preserved his claim through objection at trial or is

otherwise able to present it in the state courts; it is his later

failure to comply with other state procedures which raises the

question of exhaustion. The federal courts must then consider

whether despite the lack of compliance, the state has been given a

fair opportunity to consider the constitutional claims.

14. An early precursor of the statutory rule may be found in Ex

parte Royall itself, where it was suggested that in cases of urgen-

cy, or cases involving foreign relations or where state process

would be in conflict with special national interests, exhaustion

was not required. 117 U.S. at 252, 6 S.Ct. at 740. An exception

for this and other special circumstances“ has always

existed. Durr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761

(1950); White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348

(1945); Ex parte Hawk,321 U.S. 114, 117, 64 S.Ct. 448, 450, 88

L.Ed. 572 (1944). See e.g., Cunningham v. Neagle, 135 U.S. 1, 10

S.Ct. 658, 34 L.Ed. 55 (1890)(United States deputy marshal, held

on charge of homicide committed in the performance of his duty

to protect Justice Field, discharged on habeas corpus from state

custody). See generally Annotation, 54 L.Ed.2d 873, 888-891

(1978); Hart and Wechsler, The Federal Courts and the Federal

System 1491-1492 (2d ed. 1976). Moreover, Ex parte Hawk

(decided at a time when re-litigation of federal claims was not per-

mitted in habeas proceedings after a full and fair hearing in the

state courts) had held that ‘‘where resort to state court remedies

has failed to afford a full and fair adjudication of the federal con-

tentions raised, either because the state affords no remedy, ... or

because in the particular case the remedy afforded by state law

proves in practice unavailable or seriously inadequate, ... a

federal court should entertain [the prisoner’s] petition for habeas

corpus, else he would be remediless. 321 U.S. at 118, 64 S.Ct. at

450.

15. E.g., Layton v. Carson, 479 F.2d 1275 (5th Cir. 1973), and cases

cited therein at 1276 (state supreme court recently rendered an

adverse decision in identical case and no reason exists to believe

that state court will change its position); Galtieri, supra, at

354-55 n. 13; Reed v. Beto,343 F.2d 723 (5th Cir. 1965), aff d. on

other grounds, Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17

L.Ed 606 (1967).

C-55

16. One commentator has well expressed the connection between

the futility doctrine and the underlying compromise of federal

and state concerns implicit in the exhaustion doctrine:

This futility doctrine may seem difficult to reconcile with the

theory of exhaustion. A state’s corrective procedures may be

fully effective to vindicate meritorious federal claims, and

futility may merely reflect a lack of substantive merit. But

just as a petitioner is not required to seek relief from the state

again and again, it makes little sense, given the costs of delay,

to require a petitioner to present the state courts with a claim

recently and firmly rejected by them. Limited to such cases,

the futility doctrine is sound. It both reflects the harshness of

requiring a habeas applicant to postpone his federal hearing

until he has completed a useless progession through the state

remedial machinery and forestalls the wasteful use of judicial

resources resulting from vain applications to state

courts. Moreover, where state courts have adopted an inflexi-

ble and erroneous view of a federal claim, prompt federal

review will hasten correction of state court errors and improve

the role of the state courts as enforcers of federal law.

Note, Developments in the Law-Federal Habeas Corpus, 83

Harv.L.Rev. 1038, 1099 1100 (1970)(footnotes omitted).

17. E.g., Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976)(delay in

preparation of trial transcript for appeal); Dixon v. Florida, 388

F.2d 424, 425 (5th Cir. 1968)0 [An inordinate and unjustified

delay in the state corrective process may well result in the

frustration of petitioner’s rights and be such a circumstance to

render that process ineffective”’); Galtieri, supra, at 354 n. 12 and

cases cited therein. See generally 17 Wright, Miller & Cooper,

Federal Practice and Procedure: Jurisdiction § 4264 at 645 & n.

52 (1978) and cases cited therein.

18. See Dixon v. Florida, 388 F.2d 424, 426 (5th Cir. 1968).

19. The other cases were White v. Ragen, 324 U.S. 760, 65 S.Ct.

978, 89 L.Ed. 1348 (1945); Woods v. Nierstheimer, 328 U.S. 211,

66 S.Ct. 996, 90 L.Ed. 1177 (1946); Loftus v. Illinois, 334 U.S.

804, 68 S.Ct. 1212, 92 L.Ed. 1737 (1948); Young v. Ragen, 337

U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949); and Jennings v. II-

linois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119 (1951).

20. Cf. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d

837 (1963) which overturned the rule of Darr v. Burford that ex-

haustion of state remedies required petition to the United States

Supreme Court after an adverse decision in the State Supreme

C-56

Court: ‘‘{Ojur decision today affects all procedural hurdles to the

achievement of swift and imperative justice on habeas

corpus. The doctrine of Darr v. Burford was seen as an un-

necessary and burdensome complication of the exhaustion re-

quirement and hence was overruled.

21. The Texas Court of Criminal Appeals dismissed Carter’s dou-

ble jeopardy claim even though the claim did not involve an at-

tack on a prior conviction being challenged in federal court. As

discussed earlier, we have no reason to assume that the double

jeopardy claim raised alone now would be heard by the Texas

courts while No. 74-H-1603-A is pending. Moreover Texas’

policy of discouraging piecemea! litigation and the abuse of the

writ doctrines developed to enforce that policy suggest the op-

posite. See Ex parte Dora, 548 S.W.2d 392 (Tex.Cr.App.1977);

Ex parte Carr, 511 S.W.2d 523 (Tex.Cr.App.1974). Nor has

either party even suggested that the double jeopardy claim could

be raised by itself while the federal action is pending. In view of

these factors, we think it would be unjust to remand Carter to the

state courts on the basis of a theoretical possibility that an ade-

quate state remedy exists for his double jeopardy claim.

22. Carter urges upon this court an additional reason why he

should not be put to the choice of dismissing his federal suit or

delaying his state suit. The sentences for his 1969 and 1962 con-

victions, which he attacks in No. 74-H-1603-A, have already been

served. Carter argues that if he dismisses the federal action and

has his 1974 conviction overturned by the state courts, he will be

unable to raise the claims in No. 74-H-1603-A in another federal

habeas action. This is because, he claims, the custody re-

quirements of § 2254 would no longer be satisfied. Carter is ap-

parently relying on the statement in Carter v. Hardy, 526 F.2d

314,315 (5th Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50

L.Ed.2d 105 (1976), that ſhlabeas corpus lies essentially to

challenge illegal restraint; the writ is not available where the

sentence challenged has been fully served and is not being used

for enhancement purposes. Accord, Escobedo v. Estelle, 650

F. 2d 70, modified on petition for rehearing, 655 F.2d 613 (5th Cir.

1981).

We note that it is still an unsettled question in this circuit to

what extent the use of an earlier sentence for enhancement pur-

poses in a present sentence satisfies the custody requirement for

the purpose of an attack on the former sentence. See generally

Escobedo v. Estelle, supra (suggesting that requirement may be

satisfied, if, according to the rule of Sinclair v. Blackburn, 599

C-57

F.2d 673, 676 (5th Cir. 1979), cert. denied, 444 U.S. 1023, 100

S.Ct. 684, 62 L.Ed.2d 656 (1980), petitioner can show a positive,

demonstrable relationship between the prior conviction and the

petitioner’s present incarceration.) Relying on Escobedo and the

doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977), the State of Texas suggested at oral argu-

ment that the custody requirements in No. 74-H-1603-A may not

be presently met even now due to a failure by Carter to make pro-

per objections to the use of the 1969 and 1962 convictions at his

1974 sentencing hearing. See Escobedo, supra, 655 F.2d at 615 n.

4. The State has also argued that the claims in No. 74-H-1603-A

should be dismissed in any case for failure to exhaust state

remedies. However, these questions are not properly before us;

they are for the decision of the district court judge who is hearing

that case. We must and will assume that Carter's action in No.

74-H-1603-A is both properly in federal court and potentially

meritorious.

We think that even if Carter could bring a new federal action

after dismissal of 74-H-1603-A, putting him to such a choice is in-

consistent with the purposes of the Writ and is a considerable

waste of federal judicial resources. The habeas petition in ques-

tion was first filed in 1974; the attacks on the 1969 and 1962 con-

victions were made by amendment in 1975. The opening section

of this opinion has detailed the protracted procedural skir-

mishing engaged in by both sides and the considerable efforts of

five federal judges and magistrates in coping with the legal con-

tentions of the parties. Seven years after Carter's 1975 amend-

ment his claims in No. 74-H-1603-A are finally ready to be heard

by a federal district judge. To suggest that in order to have his

attack on his 1974 conviction heard by the Texas courts, Carter

dismiss his petition No. 74-H-1603-A and start the process of at-

tacking the prior convictions all over again seems unreasonably

wasteful and dilatory.

23. Weare fully aware that a rule as complicated as the one Texas

has created would present opportunities for such bad faith

maneuvering. For example, a petitioner might attempt to “‘leap-

frog his claims into the federal courts as follows: first he brings

Al in state court, then, without exhausting it first, brings B2 in

federal court. The state courts dismiss Al and he then brings Al

in federal court claiming exhaustion because he has no available

remedy in state court. However where such bad faith can be

shown there is no reason to extend to these petitioners the same

aid we would give to petitioners who are, through no fault of their

own, caught in the quagmire of the Texas habeas abstention

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rule. Moreover the federal courts have already developed a con-

siderable caselaw beginning with Fay v. Noia which specifically

deals with the identification of bad faith attempts by habeas peti-

tioners to circumvent available state remedies. We have no

doubt that this jurisprudence can be successfully adapted to the

problems of bad faith in this context as well.

24. Since the overturning of Carter’s 1972 conviction occurred

prior to the decisions in Burks and Greene, the retroactivity of

these decisions is a threshold question. H :wever, we held recent-

ly in Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982), that Burks

does apply retroactively, and applied it to a habeas attack on the

sentencing phase of a state trial. Thus our decision in Bulierd, in-

volving a challenge to a state trial, necessarily inwolved not only

retroactve application of Burks but also retroactive application

of Greene, which applied the rationale of Burks to the states

through the fourteenth amendment. See Bullard, supra, at 1354

n. 14. Texas has also applied Burks retroactively to its own deci-

sions. Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979),

cert, denied, 445 U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980).

25. After the 1973 revision of the Texas Penal Code, the offense of

embezzlement was consolidated with various other offenses into

the single offense of theft. Tex.Pen.Code Ann. § 31.02 (West).

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APPENDIX D

ALBERT H. CARTER, Petitioner-Appellee,

v.

W. J. ESTELLE, JR., Director, Texas

Department of Corrections,

Respondent-Appellant.

No. 80-1981.

United States Court of Appeals,

Fifth Circuit.

Nov. 18, 1982.

Appeal from the United States District

Court for the Southern District of Texas.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

EN BANC

Before POLITZ and RANDALL, Circuit Judges, and

PARKER“, District Judge.

RANDALL, Circuit Judge:

On petition for panel rehearing and rehearing en banc,

the State of Texas has asked us to reconsider our panel

holding, 677 F.2d 427 (5th Cir. 1982), in the light of the

Supreme Court’s recent decision in Tibbs v. Florida,

U.S. „ 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982). We are in agreement with the State that Tibbs

* Chief Judge of the Middle District of Louisiana, sitting by

designation.

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has had a significant impact in the law of double jeopar-

dy. As a result, we take this opportunity to modify

several statements made in our earlier opinion in the

light of Tibbs. However, as we show infra, the result in

the case remains unchanged, and we reaffirm our conclu-

sion that a writ of habeas corpus was properly granted

by the district court, 499 F.Supp. 777, in this case.

The byzantine procedural history of the case is dwelt

upon in considerable detail in our panel opinion and will

not be repeated here. Suffice it to say that petitioner

Carter was indicted for and convicted of embezzlement

in 1972, his conviction was reversed by the Texas Court

of Criminal Appeals in 1974, Carter v. State, 510 S.W.2d

323 (Tex.Cr.App.1974), and he was subsequently rein-

dicted, tried, and convicted in the same year. Carter

then filed one of his many habeas corpus petitions in

federal court, claiming that his 1974 conviction was bar-

red by double jeopardy because the 1972 conviction had

been reversed for evidentiary insufficiency. We held

that Carter’s habeas petition met the requirements of

exhaustion doctrine' and agreed that his 1974 reconvic-

tion violated the rule of Burks v. United States, 437 U.S.

1. When this case was first argued before us, the major focus of

debate was the exhaustion issue; however, the State has not con-

tested our determination of this issue in its petition for rehearing,

but has instead focused upon the double jeopardy issue. Ironical-

ly, the State conceded at oral argument that as the Texas courts

construe their own and federal law, Carter, would clearly be en-

titled in a state habeas proceeding to reversal of his 1974 convic-

tion under a double jeopardy bar. Counsel for the State argued

that dismissal of the federal petition for failure to exhaust would

thus not prejudice Carter's ability to challenge his 1974 convic-

tion. When asked why the State was so eager to force Carter into

a forum where the State would be sure to lose on the merits,

counsel for the State made the interesting response that the

State sought dismissal of the federal petition only to ensure that

Texas courts would have the first opportunity to pass on the

federal constitutional issues. The intervening decision in Tibbs

apparently has altered its philosophy of litigation.

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1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v.

Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15

(1978). Relying on our recent decision in Bullard v.

Estelle, 665 F.2d 1347 (5th Cir. 1981), cert. granted,

U.S. , 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982),

we concluded that the 1978 decisions in Burks and

Greene applied retroactively to the 1974 conviction and

affirmed the district court’s grant of habeas relief.

On June 7, 1982, a week after our opinion was issued,

the Supreme Court decided Tibbs, and held that

although reversals by an appellate court for evidentiary

insufficiency continue to create a double jeopardy bar

under Burks, reversal of a conviction because it was

against the weight of the evidence does not preclude

retrial. The State of Texas now claims that the reversal

of Carters conviction was based on the weight and not

the insufficiency of the evidence, and hence that Burks

is inapplicable.’

It is perhaps an inevitable consequence of Tibbs that

unsuccessful prosecutors will be tempted to recast every

reversal for evidentiary insufficiency by an appellate

court as a reversal based on weight so as to gain the se-

cond bite at the apple, Bullard, supra, at 1362, forbid-

den them by the Constitution. But the Supreme Court’s

opinion in Tibbs itself makes clear that this strategy will

meet with only limited success:

[Trial and appellate judges commonly distinguish

between the weight and sufficiency of the

evidence. We have no reason to believe that today’s

decision will erode the demonstrated ability of

judges to distinguish legally insufficient evidence

from evidence that rationally supports a verdict.

2. Although the State nowhere explicitly raises the point, all of its

arguments rely on the assumption that Tibbs applies retroactive-

ly to the 1974 conviction. For purposes of this opinion, we

assume, without deciding, that since Burks applies retroactively,

so does Tibbs.

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— U.S. at 102 S.Ct. at 2220 (footnote omitted).

The Supreme Court earlier in the opinion had itself

given a succinct explanation of the difference between

the two standards:

A conviction rests upon insufficient evidence when,

even after viewing the evidence in the light most

favorable to the prosecution, no rational factfinder

could have found the defendant guilty beyond a

reasonable doubt. A reversal based on the weight

of the evidence, on the other hand, d

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