Petitioners Reply Brief — Estelle v. Carter

No. 82-1283

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

W.J. ESTELLE, JR.,

Petitioner

V.

ALBERT H. CARTER.

Respondent

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

PETITIONER’S REPLY BRIEF

JIM MATTOX DOUGLAS M. BECKER

Attorney General of Texas Assistant Attorney General

Acting Chief,

DAVID R. RICHARDS Enforcement Division

Executive Assistant

Attorney General P.O. Box 12548

Austin, Texas 78711

(512) 475-3281

Attorneys For Petitioner

TABLE OF CONTENTS

A

TABLE OF CONTENTS

INDEX OF AUTHORITII CN SSWss

II.

IV.

THIS COURT SHOULD GRANT CERTIORARI

OR HOLD THE PETITION IN) ABEYANCE PEN-

DING RESOLUTION OF BULLARD V.

ESTELLE, ON REMAND FROM THIS COURT,

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ..............0000es

A. To Suggest That Estelle v. Bullard Is

Irrelevant To This Case Is Mere Speculation ...

B. The Court of Appeals Will Hold That No Ade-

quate And Independent State Ground For

Relief Supports The Granting Of Habeas

Corpus Relief in Bullard u. Estelle ............

REVERSAL OF THE JUDGMENT IN THIS

CASE WOULD HAVE A SIGNIFICANT EFFECT

IN TEXAS, ASWELL ASELSEWHERE .........

THE COURT SHOULD ACCEPT THIS OPPOR-

TUNITY TO DECIDE WHETHER ROBINSON V.

NEIL, 409 U.S. 505 (1972), MILITATES IN

FAVOR OF THE RETROACTIVITY OF BURKS

D OPES IE

, Gt ab pe aint tend Fhe sels oe cebe

Ser CeCe PD eSB RR Oe OREBR@C CeCe eaC BHD

.

INDEX OF AUTHORITIES

Cases

Bullington v. Missouri, 451 U. S. 430 (1981)

Burks v. United States, 437 U.S. 1197)

City of Mesquite v. Aladdin's Castle, Inc.,

U.S. 102 S.Ct. 1070 (198ũꝓ

Delaware v. Prouse, 440 U.S. 648 (1979) .............

Estelle v. Bullard, U.S. , 102

PEPER ih .

Ex parte Colunga, 587 S.W.2d 426

, / Ä

Ex parte Dickson, 583 s. W. 2d 793

% es We i'w bdo bie a's cle das 0 s'vpe

Ex parte Duran, 581 S.W.2d 683

Ir RUE fo okey i icv ath Ecc bat es weceas

Ex parte Mixon, 583 S.W.2d 378

I hv daa bode Chae v0 v6 dees

Ex parte Reynolds, 588 S.w.2d 900

S|. it Oe ere

Greene v. Massey, 437 U.S. 19 (197)

Mills v. Rogers, US. , 102 S.Ct.

R dcr 0 a Mrop aid axl « PLSINND elpa's ne wlio

Oregon v. Kennedy, US. , 102 S.Ct. 2083

r .

South Dakota v. Neville, U.S. „No. 81-1453

, re Oe oe bis o'd8.0

United States v. Bodey, 607 F. 2d 265 (6th Cir. 1979)

Zacchini v. Scripps-Howard Broadcasting Corp., 433

, .

ä —97*» 4c

No. 82-1283

IN THE

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

PETITIONER’S REPLY BRIEF

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

NOW COMES W.J. Estelle, Jr., Director, Texas

Department of Correction, Petitioner herein, by and

through his attorney, the Attorney General of Texas,

and submits this his reply brief:

2.

I.

THIS COURT SHOULD GRANT

CERTIORARI OR HOLD THE PETITION

IN ABEYANCE PENDING RESOLUTION

OF BULLARD V. ESTELLE, ON

REMAND FROM THIS COURT, IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

In the petition for writ of certiorari, it was noted:

On June 14, 1982, the Court granted

Petitioner’s writ of certiorari in Estelle v.

Bullard, No. 81-1774, to review the precise

retroactivity-double jeopardy question Peti-

tioner seeks to raise herein. See, Estelle v.

Bullard, US. „ 102 S.Ct. 2927

(1982). The Court should defer action upon the

instant petition pending the outcome of Estelle

v. Bullard. [footnote one]. [On January 17,

1983, the Court reversed and remanded the

judgment in Bullard so that the Court of Ap-

peals might determine whether an adequate

state ground independently supports the judg-

ment.] If the judgment is affirmed in Bullard,

then it may be appropriate to deny the petition

for writ of certiorari in this case. If the judg-

ment in Bullard is reversed, however, then it

undoubtedly will be proper to grant the writ of

certiorari in this case, and reverse and remand

the judgment for reconsideration in light of the

holding in Bullard. The Court may wish to

defer consideration of this petition until the

Court of Appeals has decided Bullard.

(Petitioner for Writ of Certiorari at 8).

Respondent suggests that Estelle v. Bullard is poten-

tially irrelevant to this case, and further that in any

event, the Court of Appeals will find that adequate and

independent state grounds support the judgment in

Bullard, thereby precluding any further review in this

Court. (Respondent’s Brief in Opposition at 10-11).

Neither suggestion has merit.

A. To Suggest That Estelle uv. Bullard Is Irrele-

vant To This Case Is Mere Speculation.

This case presents only a question of the retroactivity

of Burks v. United States, 437 U.S. 1 (1979), and Greene

v. Massey, 437 U.S. 19 (1978). Because Estelle v.

Bullard also presents the issue of the applicability of

Burks and Greene to the punishment phase of a Texas

habitual offender trial, it additionally presents the issue

of the retroactivity of Bullington v. Missouri, 451 U.S.

430 (1981). Since it is theoretically possible that

ultimately Bullington may be held prospective only,

Respondent is technically correct in suggesting that it is

conceivable that the Court in Estelle v. Bullard may not

reach the question of the retroactivity of Burks and

Greene.

This possibility, however, must be viewed as both

remote and speculative. It is remote because in light of

the close inter-relationship among Bullington, Burks,

and Greene, it is unlikely that the outcome of the

retroactivity issue will vary with respect to any of these

cases. It is speculative because Petitioner has merely

suggested that the Court await the outcome of further

appellate proceedings in Bullard. Awaiting the outcome

will enable the Court to be informed whether the

theoretical possibility suggested by Respondent will

materialize. The Court might then base its decision

whether to grant certiorari in the instant case upon reali-

ty, not speculation.

4.

B. The Court of Appeals Will Hold That No

Adequate And Independent State Ground

For Relief Supports The Granting Of

Habeas Corpus Relief In Bullard v. Estelle.

Respondent states that in all probability the Fifth

Circuit Court of Appeals will find independent and ade-

quate state grounds to support the judgment in that

case. Petitioner has attached as Appendix A to this rep-

ly brief his recently filed brief and supplemental letter

brief in the Fifth Circuit in Bullard v. Estelle, on remand

from this Court. Perusal of Petitioner’s Fifth Ciruit

brief in Bullard reveals that it is beyond peradventure

that although there may be an adequate state ground

supporting the granting of habeas corpus relief in

Bullard’s case, there is no independent state ground sup-

porting such relief. That is, although one Texas case

has cited a provision of the Texas constitution, as well

as federal authorities, in support of the granting of relief

in a case resembling Bullard’s, it is obvious that that

portion of the Texas constitution has no meaning apart

or different from the corresponding federal constitu-

tional provision. Under South Dakota v. Neville,

U.S. , No. 81-1453 (U.S., Feb. 22, 1983);

Mills v. Rogers, US. , 102 S.Ct. 2442 (1982);

Oregon v. Kennedy, US. , 102 S.Ct. 2083

(1982); City of Mesquite v. Aladdin's Castle, Inc,

USS. , 102 S.Ct. 1070 (1982); Delaware v.

Prouse, 440 U.S. 648 (1979); and Zacchini v. Scripps-

Howard Broadcasting Corp., 433 U.S. 526 (1977), no ade-

quate and independent state ground serves as a barrier

to this Court’s review of the questions presented in that

case.

REVERSAL OF THE JUDGMENT IN THIS

CASE WOULD HAVE A SIGNIFICANT

EFFECT IN TEXAS, AS WELL AS ELSEWHERE.

-5-

Respondent suggests that a reversal of the judgment

in this case would have no effect on Texas law because of

holdings of the Texas Court of Criminal Appeals and, for

that reason, few, if any, Texas prisoners would be af -

fected by such a reversal. Although Respondent admits

that unknown numbers of prisoners in other juridictions

would be affected by this Court’s holding on the merits

of the issue presented, Respondent is wrong even with

regard to his statements concerning Texas law and

Texas prisoners.

Respondent argues, The Court of Appeals’ holding

on the issue of retrospectivity of Burks/Greene will have

no effect in Texas, because Texas has had a similar rule

since its decision in Ex parte Reynolds, Tex.Crim.App.

588 S.W.2d 900 (1979).“ (Respondent’s Brief in Opposi-

tion at 21). Although the holding of the Court of Ap-

peals has little effect in Texas for the reason stated, a

reversal by this Court would amount to a reversal of Ex

parte Reynolds, as well as the other Texas cases that

stand for the same proposition.

There is no contention whatsoever in this case, nor

could there be, that the decisions in any of the cited

Texas cases rest upon any adequate or independent

state ground. No constitutional or statutory provision

in Texas law is even cited in support of the judgment in

any of those cases. The decisions rest solely upon the

Texas Court of Criminal Appeals’ view of the double

jeopardy clause of the United States Constitution. Ac-

cordingly, reversal in this case would in effect overrule

all the Texas cases relied upon by Respondent.

1. Ex parte Colunga, 587 S.W.2d 426 (Tex.Crim.App. 1979); Ex

parte Dickson, 583 S.W.2d 793 (Tex.Crim.App. 1979); Ex parte Mix-

on, 583 S.W.2d 378 (Tex.Crim.App. 1979); and Ex parte Duran, 581

S.W.2d 683 (Tex.Crim.App. 1979).

-6-

Accordingly, it remains true that a reversal by this

Court will prevent the invalidation of the convictions of

a large but unknown number of Texas prisoners, as well

as the convictions of many prisoners in other jurisdic-

tions. There are more that 36,000 inmates presently

within the Texas Department of Corrections. All who

are entitled to relief under Burks and Greene have not

yet received relief. Obviously the holding of the Court

sought by Petitioner in this case will have an immediate

controlling impact upon all pending and future such

cases.

III.

THE COURT SHOULD ACCEPT THIS

OPPORTUNITY TO DECIDE WHETHER

ROBINSON V. NEIL, 409 U.S. 505 (1972),

MILITATES IN FAVOR OF THE

RETROACTIVITY OF BURKS AND GREENE.

Respondent implicitly admits that the holding in

Robinson v. Neil is so nakedly terse that its application

has led to wildly varying results upon the retroactivity

of double jeopardy questions in the lower courts. Yet

Respondent incredibly argues that to amplify the

holding would be to unduly restrict Robinson v. Neil

and render it less useful in the analyzation of the pro-

priety of retrospectivity for future cases as yet undecid-

ed, (Respondent’s Brief in Opposition at 10), and that

the holding in Robinson v. Neil should not be explained

because it is broad enough to apply to the variety of

fact situations which might be presented by the criminal

procedures of forty-nine states other than that before

the Court, (Respondent's brief in Opposition at

22). The Court in Robinson v. Neil simply did not say

enough to prevent divergent applications in double

jeopardy-retroactivity cases in the lower courts, as

pointed out in the petition at 10 n. 3. It could not be

clearer that the lower courts are in need of additional

guidance upon such issues.

.

As to the precise issue presented in this case, the

retroactivity of Burks and Greene, two lower courts

have decided in favor of retroactivity. The Sixth Circuit

did so with no analysis whatsoever in United States v.

Bode y, 607 F. 2d 265 (6th Cir. 1979). The Texas Court of

Criminal Appeals has done so with erroneous analysis in

Ex parte Reynolds, 588 S.W.2d 900 (Tex.Crim.App.

1979), and in other cases cited supra, at 5 n.1. This

Court should decide the question now.

Respondent seems to concede that his argument in

favor of retroactivity amounts to one that all double

jeopardy decisions should be held retroactive because, in

his opinion, and as the Court of Appeals in effect stated

in this case, there are no factors that can ever outweigh

Respondent’s basic and substantive [Fifth Amend-

ment] rights, the benefit of which Respondent has been

deprived during his seven years of incarceration on a

charge of which he was, in the eyes of the law,

acquitted.” (Respondent’s Brief in Opposition at 21). In-

deed, Petitioner has characterized the holding of the

Court of Appeals as a per se holding that all double

jeopardy decisions are retroactive. (Petition for Writ of

Certiorari at 15). Such a startling development in con-

stitutional law should be announced only by this Court,

after plenary consideration of the matter.

IV.

CONCLUSION

For these reasons, Petitioner respectfully prays that

his petition for writ of certiorari be held in abeyance un-

til resolution of Bullard v. Estelle in the United States

Court of Appeals for the Fifth Circuit, and that follow-

ing the decision in Bullard that the petition in this case

be granted, and that the judgment of the Court of Ap-

peals be reversed.

-8-

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DAVID R. RICHARDS

Executive Assistant

Attorney General

DOUGLAS M. BECKER

Assistant Attorney General

Acting Chief,

Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys For Petitioner

A-1

NO. 80-2187

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES EDWIN BULLARD,

Petitioner-Appellee

v.

W J. ESTELLE, IR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent-Appellant

On Remand From

The United States Supreme Court

BRIEF FOR RESPONDENT-APPELLANT

TO THE HONORABLE JUDGES OF THE COURT

OF APPEALS:

NOW COMES W. J. Estelle, Jr., Director, Texas

Department of Corrections, Respondent-Appellant, and

on remand from the United States Supreme Court sub-

mits this his brief:

STATEMENT OF THE ISSUE

DOES THE TEXAS CONSTITUTION, AS INTER-

PRETED BY THE TEXAS COURT OF CRIMINAL

APPEALS IN EX PARTE AUGUSTA, 639 S.W.2d

481 (Tex.Crim.App. 1982)(en banc), CONSTITUTE AN

ADEQUATE AND INDEPENDENT GROUND FOR

THE GRANTING OF HABEAS CORPUS RELIEF

UNDER THE CIRCUMSTANCES OF THIS CASE?

A-2

STATEMENT OF THE CASE

The statement of the case set fort! in the original brief

for Appellant in this appeal provides the procedural

history until this Court's affirmance of the holding of

the district court in Bullard v. Estelle, 665 F.2d 1347

(5th Cir. 1982). (Brief for Appellant at 3-4).

Subsequently, on March 23, 1982, Appellant filed a

petition for writ of certiorari in the United States

Supreme Court. Appellee submitted his brief in opposi-

tion on May 20, 1982. On June 14, 1982, the Supreme

Court granted the petition for writ of certiorari, limited

to questions one and three presented by the petition.

Those questions were as follows:

(1) Are Burks v. United States, 437 U.S. 1 (1978),

Greene u. Massey, 437 U.S. 19 (1978), and Bullington v.

Missouri, 451 U.S. 430 (1980), applicable to Texas

habitual offender sentencing procedures?

(3) Are Burks v. United States, Greene u. Massey, and

Bullington u. Missouri, retroactive?

Estelle u. Bullard, U.S. , 102 S.Ct. 2927

(1982). On August 23, 1982, Appellant submitted his

brief for Petitioner. After Appellee had submitted his

brief for Respondent, he filed a motion to dismissed the

petition for writ of certiorari as improvidently granted.

Relying upon Ex parte Augusta, 639 S.W.2d 481

(Tex.Crim.App. 1982)(en banc), he argued that an in-

tervening court decision or change in a statute

eliminated the issue or made it unlikely that the ques-

tion would arise again, at least in the same context.“

(Motion to Dismiss at 2). On November 22, 1982, Ap-

pellant submitted his response to the motion to dismiss

the petition for writ of certiorari. On January 17, 1983,

the Supreme Court vacated the judgment and remanded

the case to this Court for consideration of the question

now before the Court.

A-3

STATEMENT OF THE FACTS

The statement of facts is adequately set forth in the

original brief for Appellant at 5-9.

SUMMARY OF THE ARGUMENT

This Court's affirmance of the granting of habeas cor-

pus relief in Bullard u. Estelle, 665 F.2d 1347 (5th Cir.

1982), was based solely upon the federal Constitution.

Subsequently the Texas Court of Criminal Appeals in

Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App. 1982),

in exclusive reliance upon the authority of Bullard v.

Estelle, overruled Bullard v. State, 533 S.W.2d 812

(Tex.Crim.App. 1976), and three other Texas cases, The

majority opinion is devoid of any reference to the Texas

constitution.

A few months later, in Ex parte Augusta, 639 S.W.2d

481 (Tex.Crim.App. 1982)(en banc), the Court of

Criminal Appeals decided that the double jeopardy

clause of the Texas constitution, Tex. Const. art. I,

§§14, 19, supported the same result that the court had

reached in Cooper v. State. If the decision in Ex parte

Augusta represents an adequate and independent state

ground for relief, then apparently the Supreme Court

will implement its general policy of avoiding constitu-

tionally based decisions whenever possible.

Ex parte Augusta, however, is no such adequate and

independent state ground. It is well settled that the

mere citation of state constitutional or other authority

in support of a principle with federal constitutional im-

plications does not alone constitute an adequate and in-

dependent state ground for that principle. Where the

state constitutional ground merely follows applicable

federal law so that the state-based holding is congruent

with the corresponding federally based holding, the

state ground is not adequate and independent, but en-

A-4

tirely dependent upon that court's view of the upplice ble

federal law. A reading of the Texas case cited above sup-

ports the principle that the citation to the Texas con-

stitution in Ex parte Augusta, was simply a statement

that its meaning is the same as the double jeopardy pro-

visions of U. S. Const. amend. V. This conclusion is

greatly strengthened by examination of the history of

Texas’ double jeopardy jurisprudence. Throughout the

history of that jurisprudence, only extremely rarely has

the Texas constitution even been cited as a ground for

relief upon double jeopardy principles, much less ever

been construed differently from the Texas courts’ con-

struction of federal constitutional law.

ARGUMENT AND AUTHORITIES

I. THE TEXAS CONSTITUTION, AS INTER-

PRETED BY THE TEXAS COURT OF

CRIMINAL APPEALS IN EX PARTE

AUGUSTA, 639 S.W.2d 481 (Tex.Crim.App.

1982) (en banc), DOES NOT CONSTITUTE AN

ADEQUATE AND INDEPENDENT STATE

GROUND FOR HABEAS CORPUS RELIEF

UNDER THE CIRCUMSTANCES OF AP.

PELLEE'S CASE.

Appellant does not believe that the reversal and re-

mand by the United States Supreme Court in this case is

an intimation that this Court's prior holding in Bullard

v. Estelle, 665 F.2d 1347 (5th Cir, 1982), is erroneous, or

even that this Court's prior holding was deficient in any

respect, Instead, it appears as an expression of the

Court's reluctance to reach a constitutionally based

decision when there exists an adequate and independent

state ground for reaching the same result. E.g., Mills u.

Rogers, US. , 102 S.Ct, 2442 (1982); City of

Mesquite v. Aladdin's Castle, Inc., U.S. a

102 S.Ct. 1070 (1982); New York Transit Authority v.

Beazer, 440 U.S. 568, 582-83 n.22, 99 S.Ct. 1355, 1364

A-5

n. 22 (1979); Poe v. Ullman, 367 U.S. 497, 502-09, 81 S.Ct.

1752, 1755-59 (1961); Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 341, 347-48, 56 S.Ct. 466, 483

(1936) Brandeis, J., concurring). This policy is sup-

ported, although not always required, by the prohibition

against advisory opinions“. Mills uv. Rogers, U.S.

at 102 S.Ct. at 2452, citing, United States v.

Hastings, 297 U.S. 188, 193, 56 S.Ct. 218, 220 (1935),

prohibiting the Court from rendering ‘‘an expression of

abstract opinion.“ The Supreme Court has often ex-

pressed its belief that the Courts of Appeals are in a

superior position to determine whether there exists an

adequate and independent state ground supporting the

same result as the federal constitution might support.

E.g., City of Mesquite v. Aladdin’s Castle, Inc.,

U.S. at 102 S.Ct. at 1077. In making that

determination in this case, Appellant urges the Court, as

the Supreme Court has often said, that where the state

law or constitution is congruent with corresponding

federal provisions,“ there is no independent and ade-

quate state ground. City of Mesquite v. Aladdin’s Cas-

tle, Inc., USS. at , 102 S.Ct. at 1076. Accord,

Zacchini v. Scripps-Howard Broadcasting Corp., 433

U.S. 562, 568, 97 S.Ct. 2849, 2853 (1977); Mental

Hygiene Department v. Kirchner, 380 U.S. 194, 198, 85

S.Ct. 871, 874 (1965); Missouri ex rel. Southern R. Co. v.

Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 3 (1950); Minnesota v.

National Tea Co., 309 U.S. 551, 554-55, 60 S.Ct. 676, 678

(1940); State Tax Comm'n of Utah v. Van Cott, 306 U.S.

511, 514, 59 S.Ct. 605, 606 (1939).

If the state law is thusly congruent with federal law:

[Olur correction of any federal error

automatically would result in a revision of the

Court of Appeals’ interpretation of the Texas

constitution. Instead of providing independent

support for the judgment below, the Texas law,

as understood by the Court of Appeals, would

be dependent on our reading of federal law.

A-6

City of Mesquite v Aladdin's Castle, Inc., USS. at

—__—, 102 S.Ct. at 1076-77.

Resolving the present issue is not in conflict with the

well settled principle that a violation of state law cannot

provide a basis for federal habeas corpus relief. That

principle is firmly established by the language of 28

U.S.C. §2254(a), which authorizes a federal court to

entertain an application for a writ of habeas corpus by a

person held in state custody only on the ground that he

is in custody in violation of the Constitution or laws or

treaties of the United States. It is a principle also firm-

ly established in the jurisprudence of the Supreme

Court, Engle v. Isaac, 456 U.S. , 102 S.Ct. 1558,

1568 n.21 (1982); Smith v. Phillips, 455 U.S., 102

S.Ct. 940, 948 (1982); and a plethora of this Court’s deci-

sions. E. g., Llamas-Almaguer v. Wainwright, 666 F. 2d

191 (5th Cir. 1982); Van Poyck v. Wainwright, 595 F. 2d

1083 (5th Cir. 1979); Butts v. Wainwright, 575 F. 2d 576

(5th Cir. 1978); Loud v. Estelle, 556 F.2d 1326, 1329 (5th

Cir. 1977); McKinney v. Parsons, 513 F.2d 264, 267 (5th

Cir.), cert. denied, 423 U.S. 960, 96 S.Ct. 376 (1975). As

this Court has often said,

[W]e do not sit as a super state supreme court in a

habeas corpus proceeding.

Billiot v. Maggio, 694 F.2d 98 (5th Cir. 1982); Meyer v.

Estelle, 621 F.2d 769 (5th Cir. 1980); Cronnon v.

Alabama, 587 F.2d 246, 250 (5th Cir. 1979); Alvarez v.

Estelle, 531 F.2d 1319, 1322 (5th Cir. 1976), cert. denied,

429 U.S. 1044, 97 S.Ct. 748 (1977); Martin v. Wain-

wright, 428 F.2d 356, 357 (5th Cir. 1970).

This Court did not discuss the applicable provisions of

the Texas constitution in its original opinion simply

because they could have no relevance to the granting or

denial of federal habeas corpus relief. The Court is asked

to examine the state constitution on remand solely for

A-7

the purpose of aiding the Supreme Court’s determina-

tion whether this case is a proper one for its review.

Nor does the existence of an adequate and indepen-

dent state ground for relief support a dismissal of the

case at this point for further exhaustion of state court

remedies. It is well settled that after a habeas petitioner

has once exhausted his state remedies, an intervening

change in substantive federal law or an intervening

change in procedural state law may require resubmis-

sion of a previously exhausted claim to the state courts.

An intervening change in substantive state law,

however, creates no such necessity, for the state courts

have already had a full opportunity to apply state law to

the facts of that particular case. Francisco v. Gathright,

419 U.S. 59, 95 S.Ct. 257 (1974); Picard v. Connor, 404

U.S. 270, 276, 92 S.Ct. 509, 512-13 (1971); Roberts v.

LaVallee, 389 U.S. 40, 88 S.Ct. 194 (1967); Galtieri v.

Wainwright, 582 F.2d 348, 355 (5th Cir. 1978)(en banc);

Texas v. Payton, 390 F.2d 261, 270 (5th Cir. 1968). '

With these principles in mind, Appellant now pro-

ceeds to a discussion of the issue upon remand.

Appellee’s direct appeal from the judgment of convic-

tion was affirmed in Bullard v. State, 533 S.W.2d 812

(Tex.Crim.App. 1976). This Court later held that

resentencing Appellee violated the double jeopardy

clause of U.S. Const. amend V. Bullard v. Estelle, 665

F.2d 1347 (5th Cir. 1982). That decision also held

retroactive the Supreme Court’s decisions furnishing

the basis for Appellee’s cause of action. Bullington v.

Missouri, 451 U.S. 430, 101 S.Ct. 1852 (1981); Greene v.

Massey, 437 U.S. 19, 98 S.Ct. 2051 (1978); Burks v.

United States, 437 U.S. 1, 98 S.Ct. 2141 (1978).

1. The Court’s holding in Canet v. Turner, 606 F.2d 89, 91 (5th

Cir. 1979), may represent an anomaly in this otherwise unanimous

body of precedent.

A-8

On April 21, 1982, the Texas Court of Criminal Ap-

peals decided Cooper v. State, 631 S.W.2d 508

(Tex.Crim.App. 1982). In exclusive reliance upon the

authority of Bullard v. Estelle, 665 F.2d 1347 (5th Cir.

1982), the Court of Criminal Appeals overruled Bullard

v. State, 533 S.W.2d 812 (Tex.Crim.App. 1976), and

three other Texas cases, Porier v. State, 591 S.W.2d 482

(Tex.Crim.App. 1979); Kormurke v. State, 562 S.W.2d

230 (Tex.Crim.App. 1978); Tyra v. State, 534 S.W.2d

695 (Tex.Crim.App. 1976). Two judges of the Court of

Criminal Appeals in concurring opinions would have

also adopted the rule in Bullard v. Estelle on the basis of

the Texas constitution. The majority opinion of seven

judges, however, is devoid of any reference to the Texas

constitution.

More recently, On October 6, 1982, the Texas Court of

Criminal Appeals again wrote upon the issue before the

Court in Ex parte Augusta, 639 S.W.2d 481

(Tex.Crim.App. 1982)(en banc). The opinion was joined

in by five judges; four others concurred in result only.

Augusta affirmed the holding in Cooper, holding as

follows:

We believe that whether one applies the Double

Jeopardy Clause of the Federal Constitution,

see the Fifth Amendment to the United States

Constitution, or applies art. I, Sections 14 and

19 of the Texas Constitution to the situation

where the evidence is found lacking in the

resolution of factual issues presented at the

punishment stage of a trial, the State should

not get a second bite at the apple“, at either a

new punishment hearing or upon a retrial of the

entire case. Thus, we hold that under either the

Federal Constitution or the Texas Constitution,

the State of Texas is precluded from

relitigating an issue of fact at a second trial or

at a second punishment hearing where it failed

A9

to properly litigate that factual issue at the

first trial or at the first punishment hearing.

Ex parte Augusta, 639 S.W.2d at 485.

The essence of Appellee’s contention in the Supreme

Court that the writ of certiorari should be dismissed as

improvidently granted is that the above reference to the

Texas constitution furnishes an adequate and indepen-

dent state ground supporting the granting of habeas

corp’; <elief in this case. It appears to be Appellee's

position that because he is now entitled to relief under

the present state constitutional law in Texas, the pre-

sent question is unlikely to arise again.

This contention is without merit. In Delaware v. Pro-

use, 440 U.S. 648, 99 S.Ct. 1391 (1979), a decision of the

Delaware Supreme Court that the Supreme Court af-

firmed purported to rest upon provisions of both the

federal and state constitutions. The Court held that

review was not barred where the state constitutional

holdings depended upon the state court's view of the

reach of the Fourth and Fourteenth Amendments.“ 440

U.S. at 653, 99 S.Ct. at 1396. Where it appears that the

scope of the state and federal constitutions are similar,

to hold that the lower cour analysis under federal law

is inaccurate is to hold that the lower court’s application

of state law was equally erroneous. This principle was

recently affirmed in Oregon v. Kennedy,

US. 102 S.Ct. 2083, 2087 (1982):

Even if the case admitted of more doubt as to

whether federal and state grounds for decision

were intermixed, the fact that the state court

relied to the extent it did on federal grounds re-

quires us to reach the merits. Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S.

652, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965

(1977).

This case is a classic illustration of the principles

underlying Delaware v. Prouse, 440 U.S. 648, 99 S.Ct.

A-10

1391 (1979). In Cooper v. State, 631 S.W.2d 508

(Tex.Crim.App. 1982), the Texas Court of Criminal Ap-

peals overruled several Texas cases and adopted the rule

of Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982). The

exclusive grounds of reliance were the reasoning in

Bullard v. Estelle, and the United States Constitution.

The seven-judge majority opinion is devoid of any

reference to the Texas constitution. Judge Odom in his

concurring opinion opined. Today's decision should be

grounded on both federal and state constitutional prin-

ciples, 631 S.W.2d at 515, but the majority refused to

do so.

In Ex parte Augusta, 694 S.W.2d 481 (Tex.Crim.App.

1982) (en banc), the court unanimously reaffirmed the

holdings in Bullard v. Estelle, and Cooper v. State. The

decision contains no additional reasoning whatsoever,

but for the first time states that on the basis of the

United States Constitution and the Texas constitution

the rules in Estelle v. Bullard and Cooper v. State,

should apply. The court in Ex parte Augusta gives no in-

timation or inkling of any suspicion that the applicable

provisions of the Texas constitution have even a shade

of meaning different from the applicable provisions of

the United States Constitution. It is simply impossible

reasonably to reach any conclusion except that, ‘‘[T]he

state constitutional holding depended upon the state

court’s review of the reach of the Fourth and Fourteenth

Amendments. Delaware v. Prouse, 440 U.S. at 653, 99

S.Ct. at 1396. If the Supreme Court were to reverse this

Court’s holding in Estelle v. Bullard, it is beyond

speculation and in the realm of fantasy to imagine that

the Texas Court of Criminal Appeals would do anything

other than adopt that holding, particularly where four

judges of the court refused to join in the opinion holding

the Texas constitution applicable in the first place.

Thus, as in Delaware u. Prouse, Oregon v. Kennedy,

US. , 102 S.Ct. 2083 (1982), and Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 97

A-ll

S.Ct. 2849 (1977), it is most certainly true that there ex-

ists no adequate and independent state ground for the

holdings of the Texas courts.

It is worth noting that in other cases applying double

jeopardy principles to Texas prosecutions, the Texas

Court of Criminal Appeals has been equally reluctant

even to cite, much less construe differently from the

federal Constitution, the double jeopardy and due pro-

cess clauses of Tex. Const. amend. I, §§14, 19, respec-

tively. Recently in Ex parte McWilliams, 634 S. W. ad

815 (Tex.Crim.App. 1982) (en banc) (on rehearing), the

court was faced with a golden opportunity to base the

survival of the Texas carving doctrine, which is plainly

not mandated by the Double Jeopardy Clause of the

United States Constitution, upon the Texas constitu-

tion. Four dissenting judges urged the majority to do so.

A majority of the court, however, proclaimed that the

same result will follow in double jeopardy questions

under the strict construction of the Constitution and

this State.“ Ex parte McWilliams, 634 S.W.2d at 824.

Appellee’s review of the other Texas cases in other

areas of double jeopardy jurisprudence reveals exclusive

reliance on the United States Constitution and no in-

timation whatsoever that the Texas Constitution differs

in any respect from the federal regarding the scope of

the double jeopardy clause. The Court of Criminal Ap-

peals has followed the federal rule regarding the attach-

ment of jeopardy, both before and after Crist v. Bretz,

437 U.S. 28, 98 S.Ct. 2156 (1978). E.g., Moore v. State,

631 S.W.2d 245 (Tex.Crim.App. 1982); Torres v. State,

614 S.W.2d 436 (Tex. Crim.App. 1981); Sanne v. State,

609 S.W.2d 762 (Tex.Crim.App. 1980); McElwee v.

State, 589 S.W.2d 455 (Tex.Crim.App. 1979); Vardas v.

State, 518 S.W.2d 826 (Tex.Crim.App. 1975), cert.

denied, 423 U.S. 904, 96 S.Ct. 206 (1976). The court has

applied only federal constitutional principles where the

prosecution has provoked a mistrial, Durrough v. State,

A-12

620 S.W.2d 134 (Tex.Crim.App. 1981), and in applica-

tion of the manifest necessity doctrine, McClendon v.

State, 583 S.W.2d 777 (Tex.Crim.App. 1979). The court

has applied only federal law in deciding the effect of a

former conviction, Humphreys v. State 565 S.W.2d 59

(Tex.Crim.App. 1978); a former acquittal, Thompson v.

State, 527 S.W.2d 888 (Tex.Crim.App. 1975); and ap-

plication of the collateral estoppel doctrine, Warren v.

State, 514 S.W.2d 458 (Tex.Crim.App. 1974).

Indeed, although there may be other examples, Ap-

pellant knows of only one case in the history of Texas

double jeopardy jurisprudence in which the state con-

stitution was given any meaning whatsoever different

from the Texas Court of Criminal Appeals’ interpreta-

tion of the federal constitution. In Foster v. State, 635

S.W.2d 710 (Tex.Crim.App. 1982) (on rehearing en banc),

a scant majority of the Court of Criminal Appeals relied

upon the differing language of Tex. Const. art. I, §14, as

compared to U.S. Const. amend. V, for the basis of its

decision. The federal double jeopardy clause bars being

“twice put in jeopardy.’’ The state counterpart bars be-

ing twice put in jeopardy”’ and being again put upon

trial.’’ Based upon this difference in language, the Court

of Criminal Appeals felt itself compelled to decide

whether there was insufficient evidence in a case that

the court had already decided must be reversed for a

defective indictment. The significance of the sufficiency

of the evidence question, of course, is that in the wake of

Burks v. United States and Greene v. Massey, a retrial

would be barred if the evidence were insufficient.

It is questionable whether even in Foster v. State the

Court of Criminal Appeals reached a result different

from the result that would be mandated by application

of the federal constitution. The Supreme Court has held

that a defective indictment does not prevent jeopardy

from attaching. Jiiinois u. Summerville, 410 U.S. 458, 93

S.Ct. 1066 (1973); Benton v. Maryland, 395 U.S. 784,

A-13

796-97, 89 S.Ct. 2056, 2063-64 (1969); United States v.

Ball, 163 U.S. 662, 16 S.Ct. 1192 (1896). In any event,

the holding in Foster v. State had nothing whatsoever to

do with the holding in Ex parte Augusta. Ex parte

Augusta relies upon none of the language of the Texas

constitution cited by the court in Foster v. State. The

two holdings are entirely separate and are not inter-

related in any way. The holding in Foster v. State,

therefore, as well as its reasoning, cannot provide a

basis for a conclusion that Ex parte Augusta itself fur-

nishes an adequate and independent state ground for

the granting of habeas corpus relief in this case.

CONCLUSION

For these reasons, Appellant respectfully requests

that the Court hold that there is no adequate and in-

dependent state ground for the granting of habeas cor-

pus relief in Appellee’s case.

Respectfully submitted,

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

Attroneys For Respondent-

Appellant

B-1

March 3, 1983

Hon, Henry A. Politz

Hon. Carolyn Randall

Hon. John V. Parker

Chief Judge, Middle District

of Louisiana, (sitting by designation)

RE: Bullard v. Estelle, No. 80-2087

TO THE HONORABLE JUDGES OF THE COURT

OF APPEALS:

The issue presented in this case upon remand from the

United States Supreme Court is whether the Texas con-

stitution provides an adequate independent state

ground for the granting of habeas corpus relief. In Ap-

pellant's recently submitted brief, he argued that this

case is indistinguishable from and controlled by

Delaware v. Prouse, 440 U.S. 648, 98 S.Ct. 1391

(1979). In fact, the instant case was characterized as ‘‘a

classic illustration of the principles underlying Delaware

v. Prouse, (Brief for Appellant at 11). Barely a week

ago, the Supreme Court of the United States decided

South Dakota v. Neville, US. „No. 81-1453

(U.S., Feb. 22, 1983). The Court in South Dakota v.

Neville held that its determination of the same question

was governed by its holding in Deleware v. Prouse.

South Dakota v. Neville, slip op. at 3-4 n. 5. According-

ly, the Court’s holding in Neville strongly supports Ap-

pellant’s position.

The substantive issue in Neville was whether the ad-

mission into evidence of the defendant’s refusal to sub-

mit to a blood alcohol test, as explicitly authorized by a

South Dakota statute, in a prosecution for driving while

intoxicated, offended his Fifth Amendment right

against self-incrimination. The South Dakota Supreme

Court had held, ‘‘[E]vidence of an accused’s refusal to

take a blood test violates the federal and state privilege

against self-incrimination and therefore SDCL

$2-23-10.1 is unconstitutional.“ State v. Neville, 312

N.W.2d 723, 726 (S.D. 1981). Thus, as Mr. Justice

Stevens correctly noted, ‘‘[T]he South Dakota Supreme

Court unambiguously held that the statute violated the

State’s Constitution.’’ South Dakota v. Neville, slip op.

at 1 (dissenting opinion of Stevens, J.). The majority of

seven justices, however, noted that in spite of this

holding, the South Dakota Supreme Court, after pro-

ceeding with its analysis under U.S. Const. amend. V,

with appropriate citations of federal authority, merely

“concluded without further analysis that the state

privilege was violated as well.“ South Dakota v. Neville,

slip op. at 3 n. 5. The majority stated:

The analysis of the court below was remarkably

similar to that of the state court opinion review-

ed in Delaware v. Prouse, 440 U.S. 648, 651-53

(1979). The state court opinion analyzed

various decisions interpreting the Federal Con-

stitution, concluded that the Fourth Amend-

ment violated the police procedure at issue

there, and then summarily held that the State

Constitution was therefore also infringed.

Id. at 3-4 n. 5. (emphasis added). The Court concluded,

Although this would be an adequate state

ground for decision, we do not read the opinion

as resting on an independent state

ground. Rather, we think the court determined

that admission of this evidence violated the

Fifth Amendment privilege against self-

incrimination, and then concluded without fur-

ther analysis that the state privilege was

violated as well.

Id. (emphasis in original). The Court so held in spite of a

footnote in the opinion of the South Dakota Supreme

Court strongly suggesting that the comparable state

and federal constitutional provisions were not co-

extensive. State v. Neville, 312 N.W.2d 723, 726 n. *.

In his dissent, Mr. Justice Stevens argued, In this

case we lack jurisdiction because the South Dakota

Supreme Court has not indicated, explicitly or implicit-

ly, that its construction of Article 6, §9, of the South

Dakota Constitution was contingent or our agreement

with its determination of the Fifth Amendment to the

United States Constitution.“ South Dakota v. Neville,

slip op. at 2 (dissenting opinion of Stevens, J.). Thus,

the majority specifically rejected Justice Stevens's view

that

Unless we have explicit notice that a provision

of a State Constitution is intended to be a mere

shadow of the comparable provision in the

Federal Constitution, it is presumptuous—if

not paternalistic—for this Court to make that

assumption on its own.

Id.

The opinion of the Texas Court of Criminal Appeals in

Ex parte Augusta, 639 S.W.2d 481 (Tex.Crim.App.

1982) (en banc), is remarkably similar to that of the

South Dakota Supreme Court in State v. Neville. In

holding that Petitioner Augusta was entitled to relief

under the same circumstances as Appellee Bullard in

this case, the Court of Criminal Appeals relied upon the

authority and reasoning of Burks b. United States, 437

U.S. 19, 98 S.Ct. 2141 (1978); Greene v. Massey, 437

U.S. 19, 98 S.Ct. 2151 (1978); Bullington b. Missouri,

451 U.S. 430, 101 S.Ct. 1852 (1981); and this Court’s pri-

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

1982). The only state authority cited in support of the

B-4

substantive issue was Cooper v. State, 631 S.W.2d 508

(Tex.Crim.App. 1982), a decision that was devoid of even

any reference to the state constitution or any other state

ground for reversal. The opinion in Ex parte Augusta

includes no discussion whatsoever of the applicable pro-

visions of the Texas constitution, but instead, as in

State v. Neville, simply summarily concluded that

Augusta violated the double jeopardy clauses of both

the federal and state constitutions, It appears beyond

peradventure, therefore, Although this would be an

adequate state ground for decision, we do not read the

opinion as resting on an independent state ground.”

South Dakota v. Neville, slip op. at 3 n.5 (emphasis in

original).

The Supreme Court’s opinion in Neville also il-

luminates the irrelevance of Foster v. State, 635 S.W.2d

710 (Tex.Crim.App. 1982). In Foster, the Court of

Criminal Appeals examined a double jeopardy issue dif-

ferent from that presented in the instant case or in Ex

parte Augusta, Based upon the holding and analysis of

the court in Foster, a reasonable argument may be made

that the Court of Criminal Appeals established an ade-

quate and independent state ground for reversal by vir-

tue of its reliance upon the differing language of the

state and federal constitutional provisions regarding

double jeopardy. Foster v. State, 635 S.W.2d at 714.

Similarly, in State v. Opperman, 247 N.W.2d 673, 674

(S.D.1976), the South Dakota Supreme Court in a case

on remand from the United States Supreme Court em-

phasized the independent nature of our state constitu-

tion regardless of any similarity between the language

of that document and the federal constitution.“ Mr

Justice Stevens relied upon State v. Opperman in his

dissent in South Dakota v. Neville, slip op. at 4. The

majority, however, apparently believed it to be irrele-

vant if in some other context the South Dakota Supreme

Court had emphasized the independent nature of its own

constitutional provisions. The Court believed it to be of

overriding importance that in the case before them, the

South Dakota Supreme Court had failed to do 80.

Accordingly, it is irrelevant whether in some other case

pertaining to some other issue the Court of Criminal Ap-

peals has established an adequate and independent state

ground for granting relief. The Court of Criminal Ap-

peals neglected to do so in Ex parte Augusta and

Cooper v. State, the only state decisions pertaining to

the issue presented in the instant case. That failure

should reasonably preclude this Court from finding any

adequate and independent state ground.

Respectfully submitted,

/s/ Douglas M. Becker

DOUGLAS M. BECKER

Assistant Attorney General

DMB/sw

Enclosure

ce: Mr. Kenneth E. Houp, Jr.

Attorney at Law

505 West 12th St., Suite 200

Austin, Texas 78701