# Appendix — Estelle v. Carter

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0385%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1056

## Text

82-1283 [fr

D
NO. 62. JAN 81 1983

—
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

A-l
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

A-2

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

A-3

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.

A-4
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

A-5

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

A-
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,

A-7

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

A-8

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

A9

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

A-10

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,

A-11

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

A-12
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

A-13

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

A-14

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

A-15

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

A-16

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 protect

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0385%3A2. Public record. Not legal advice.