Appendix — Coiner v. Shear

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APPENDIX A

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

‘Constitution of the United States, Fifth Amendment:

. No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or pub-

lic danger; nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

_ nor be deprived of life, liberty, or property, without due pro-

cess of law; nor shall private property be taken for public use,

without just compensation.

Constitution of West Virginia, Article II, Section 5:

Excessive bail shall not be required, nor excessive fines im-

posed, nof cruel and unusual punishment inflicted. Penalties

shall be proportioned to the character and degree of the of-

fence. No person shall be transported out of, or forced to leave ©

the State for any offence committed within the same; nor shall

| any person, in any criminal case, be compelled to be a witness

against himself, or be twice put in jeopardy of life or liberty

. for the same offence.

West Virginia Code, Chapter 61, Article 2, Section 12, 1931, as

amended:

If any person commit, or ailaiien to commit, robbery by par-

tial strangulation or suffocation, or by striking or beating, or

by other violence to the person, or by the threat or presenting

of firearms, or other deadly weapon or instrumentality what-

soever, he shall be guilty of a felony, and, upon conviction,

shall be confined in the penitentiary not less than ten years.

If any person commit, or attempt to commit, a robbery in any”

other mode or by any other means, .except as provided for in

§ Speareoncran

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the succeeding paragraph of this section, he shall be guilty of

a felony, and, upon conviction, shall be confined in the peni-

tentiary not less than five nor more than eighteen years.

If any person (a) by force and violence, or by putting in

fear, feloniously takes, or feloniously attempts to take, from”

the person or presence of another any property or money or

any other thing of value belonging to, or.in the care, custody,

control, management or possession of, any bank, he shall be

guilty of a felony, and, upon conviction, shall be confined in

the penitentiary not less than ten nor more than twenty years;

and if any person (b), in committing, or in attempting to com-

mit, any offense defined in the preceding clause (a) of this

paragraph, assaults pny person, or puts in jeopardy,the life of

"any person by .the use of a dangerous weapon or device, he

‘ shall be guilty of a felony, and, upon conviction, shall be con- -

fined in the penitentiary not less than ten years nor more than

| acini years.

West Virginia Code, Chapter 61, Asticte 11, Section 13, 1931, an

amended:

A person acquitted by the jury upon the facts and merits on

a former trial may plead such acquittal in bar of a second

prosecution for the same offense, notwithstanding any defect

in the form or substance of the indictment or accusation on

which he was acquitted. .

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APPENDIX B

OPINIONS BELOW

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

LEE SHEAR,

Petitioner

Vv. Civil Action File No. 570-E |

OTTO C. BOLES, Warden of

the West Virginia State

Penitentiary,

manpontayt

MEMORANDUM

This memorandum concerns a habeas corpus petition insti- ,

’ tuted by Lee Shear, an inmate of the West Virginia Peniten-

tiary. The circumstances leading to Shear’s present incarcer-

ation are as follows.

On February 10, 1964, the Ohio County Grand Jury returned

two indictments against Shear. Felony indictment 214*appears-

to relate to an attempted armed robbery of one George Car-

ter during January, 1964. Felony indictment 215. similarly

appears to relate*to an attempted armed robbery on one Robert

Rose in December, 1963.

On February 14, 1964, Shear, who was represented by two

earlier court appointed attorneys, appeared before the Inter-

mediate Court of Ohio County, West Virginia, and pleaded

guilty to the charges contained in both indictments. He was,

on the same day, given two concurrent ten year prison terms

at the West Virginia State Penitentiary. Shear was credited

for the time spent in the Ohio County Jail awaiting trial from

the day of his arrest on January 4, 1964.

Shear filed ‘a petition. for habeas corpus with the West Vir-

ginia State Supreme Court of Appeals on May.22, 1964, con-

tending, for the most part, (1) that his court appointed coun- -

sel had not adequately represented him; and (2) that his guilty

pleas were coerced, mainly by the threats of his court ap-

pointed counsel and of the Judge of the Ohio County Inter-

mediate Court. On June 8, 1964, the writ was refused.

.

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__- On July 22, 1964, Shear petitioned this Court for federal

habeas corpus relief, in Civil Action File No. 1389-W, again

alleging, for the most part, (1) ineffective assistance’of coun-

‘sel, and (2) coercion of his two guilty pleas. Charles F. Paul,

then Judge of this Court, appointed counsel and granted a plen-_ .

ary hearing, which was conducted on September 22; 1964.

‘Judge Paul then found (1) that Shear had been afforded ef- -

fective assistance of counsel, but (2) that the _ had been

. involuntary.

By order entered September 22, 1964, J udge Paul determined

that Lee Shear be released from incarceration, but that the

release be stayed for ten days, during which time the State

might initiate proceedings for the purpose of iat and .

retrying Shear on the two indictments.

Subsequently, Shear went to jury trial on thé two dieruie

contained in each indictment. His-trials were conducted in

the appropriate céurt of Ohio County. He was represented

by the same two attorneys who had earlier handled his federal.

habeas corpus proceedings. He was not tried before the same

state trial court judge who had accepted his guilty pleas in

February, 1964. .

On October 28, 1964, the jury found Shear a of the

‘charges precipitated by felony indictment number 214. On

February 3, 1965, at a subsequent term. of court, with an

entirely new jury panel from that which the earlier jury had

been selected, a second jury returned a guilty verdict as to

the charges precipitated by felony indictment number 215.

On January 11, 1965, Shear was sentenced to fifteen years -

at the West Virginia Penitentiary in Moundsville for the first _

conviction, and on February 3, 1965, he was given a consécu-

tive fifteen year sentence at the same institution for the

second felony conviction. Under West Virginia Code, § 61-2-12

_ (Michie 1966), armed robbery and attempted armed robbery

carry a minimum of ten years confinement.

At this point, it should be noted that while the copies of

the indictments contained in the court file indicate that both

indictments returned against Shear were for attempted armed

robbery, this Court notes that copies of the second sentencing

court’s two orders recite that Shear’s second sentences are

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posited on his having been convicted of armed robbery, and

not attempted armed robbery. Shear himself states in his

petition that he is serving because of convictions for armed

robbery, and the trial transcript of -felony indictment_214~

supports him in at. least the one instance. The Respondent’s

answer to the Court’s latest show cause order also- indicates

Shear is correct when he states oat: he is serving for armed

robbery.

As has been indicated, this asietiade discrepancy is not critical -

as to the amount of time which Shear may be required to

serve, because under West Virginia Code, § 61-2-12 (Michie

1966) , both armed robbery and attempted armed robbery carry

the same sentences. What is critical, of coursé, is whether

Shear was sufficiently informed’ of the offenses with which

he was actually charged.

Having raised this side issue, the Court now redirects its

attention to the circumstances surrounding Shear’s present

incarceration. The record is silent as to whether Shear was

credited. with the time served following his initial incarcera-

. tion on January 4, 1964, and up to the imposition of sentence

for his first felony conviction on January 11, 1965.

If he was so credited, his two new sentences then would

run approximately 29 years beyond January 11, 1965. If he

was not credited, the total length of his incarceration, absent

parole, would be about 31 years beyond January 4, 1964. Since

the trial judge who imposed both later sentences did not in-

dicate whether credit was to be given, this Court must assume

that Shear was not given the benefit of the time he had |

already served. He would, of course, later be eligible for a

deduction from his: sentence for good conduct under West

_ Virginia Code, § 28-5-27 (Michie 1966).

On April 30, 1965, Shear petitioned the West Virginia S State

Supreme Court of Appeals for habeas corpus relief, contending

(1) that his trials for the two felony charges, after Judge

Paul had granted federal habeas corpus relief, constituted |

“double jeojardy” within the meaning of the United States

Constitution; (2) that he was Constitutionally aggrieved when

. the State failed to reindict him before he was subjected to the

two subsequent trials; and (3) that the imposition of more

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severe sentences the second time in the state trial court was

Constitutionally impermissible.

On July 12, 1965, the Supreme Court of West Virginia sum-

marily denied the petition without a hearing.

On December 1, 1965, Lee Shear then petitioned this Court

for federal habeas corpus relief, generally contending (1) that ,

he had beem denied his rights, as enunciated in Escobedo v.

Illinois, 378 U. S. 478 (1964); and (2) that the state trial court

was not Constitutionally entitled to impose a longer prison

obligation, after his two subsequent jury trials and guilty

verdicts,. than he had originally received after entering his

- two guilty pleas.

On the day Shear’s petition was filed, the Court ordered —

the Respondent to show cause why the relief prayed for —

should not be granted, and on December 13, 1965, the Re-

spondent answered, contending, in part, that Shear had not .

exhausted his available state remedies, as is now necessitated —

_ by the Court’s ruling in Miller v. Boles, 248 F. Supp. 49 (N. D.

W. Va. 1965). On January 12, 1966, therefore, the Court

ordered Shear’s petition be dismissed, because of the reasons

suggested by the Respondent. Several weeks later the Court

also denied a certificate of probable cause, but allowed Shear

leave to proceed further on appeal in forma pauperis.

It was in this posture that the case was appealed to the

Fourth Circuit Court of Appeals in February, 1966.

Because one of the contentions in the present petition raises

novel questions regarding the rights of a successful habeas

corpus applicant, on the occasion, of renewed state prosecution,

the Court asked that the case be remanded for further con-

sideration, This request was granted by order dated March 9,

1966.

The present opinion is confined to the following two ques-

tions‘of law: (1) May a successful habeas corpus applicant,

serving a state imposed sentence, on the occasion of renewed

prosecution, be given a more severe sentence than that origin-

ally given; and (2) may the secohd sentence be imposed

without giving evelt for time already served under the first

sentence? 8

Whether or not Shear was Constitutionally aggrieved by

the seeming discrepancy between the indictments and the

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offenses for which he has been convicted is a questién which

this Court does not answer at this time, partly because the

contention has not been raised anywhere in the record of the

case, and partly because this Court requested a remand only

for the specific purpose of considering the Constitutional issues

_ underlying more severe second sentencings.

It has been traditionally accepted that a state may rein-

stitute criminal proceedings against a successful habeas corpus

_applicant. Irvin v. Dowd, 366 U. S. 717, 728-729 (1961); Wiman

v. Argo, 308 F. 2d 674 (5th Cir. 1962); Wiman v. Powell, 293 -

F. 2d 605 (5th Cir. 1961); U. S. ex rel. Jones v. Nash, 264 F.

2d 610 (8th Cir. 1959); U. S. ex rel. Almeida v. Baldi, 195 F.

2d 815, 825 (fn. 30) (3rd Cir. 1952); Mitchell v. Youell, 130 F.

2d 880 (4th Cir. 1942) ); 89 C. J. S. Habeas Corpus, § 104 (1944) ; :

25 AM. JUR. Habeas Corpus, § 157 (1940).

Recently, however, some have challenged a state’s power

to-impose a longer sentence in a new criminal proceeding.

E. g., Van Alstyne, In Gideon’s Wake: Harsher Penalties and

the “Successful” Criminal Appellant,.74 Yale L. J. 606 (1965).

The main thrust of such arguments is that to require a criminal’

defendant to risk the chance of a more severe sentence, as

a condition of exercising his Constitutional right to a fair trial,

results in an unconstitutional plight. More simply stated, it is

uncoriscionable to place a petitioner in a quandry. On one

hand, he might continue to serve a sentence ‘vhich is Constitu-

tionally void. On the other hand, he might face the risk of a

more severe sentence if he tries to remedy the existing Consti-

tutional deficiency. This dilemma, it is maintained, is not

consistent with due process.

But just as this Court is cognizant of one side of the argu-

ment, so too is it aware of the other. There are compelling

reasons for judicial restraint by a federal habeas corpus

court.

In the first place, some of the arguments of law cited by the

opponents of more severe sentencings are not entirely dis-

positive. Those who argue against the imposition of a longer

second sentence often refer to the Constitutional principle

stated in Green v. U. S., 355 U. S. 184 (1957), ‘which has been

made applicable to the states via the fourteenth amendment

in U: S. ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (2d Cir. 1965),

SET er SB,

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cert. den. wba nom. Mancusi v. Hetenyi (No. os9y, 383 U. S..

913 (1966), whereby a defendant who successfully appeals a

criminal conviction may not thereafter be tried and convicted

of a higher offense arising out of the same factual circum-

stances, and which for all purposes he has. already been

acquitted. “The law should not, and in our judgment does not,

place the defendant in such an incredible dilémma.” Green

v. U.S. supra at 193.

' But the analogy, though valid up to a certain point, can be

critically examined. ‘In the Green type cases, that which is

in issue is whether a defendant, in the new proceedings, should

be charged again with a crime for which a jury has already

chosen not to convftt him. In other words, @ves an appellant

waive ‘his defense of double jeopardy? As Justice Black,

writing for the majority in Green, pointed out, on pages

187-188:

The underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is that

the State with all its resources and power should not be

allowed to make repeated attempts to convict an indi-

vidual for an alleged offense, thereby subjecting him to

embarassment, expense and ordeal and compelling him to

- live in a continuing state of anxiety and insecurity, as well

as enhancing the possibility that even though innocent he

may be found guilty.

In the habeas corpus cases where a successful applicant is

subjected to new criminal proceedings, on the other hand,

there is no question of double jeopardy. See 22 C. J. S.

Criminal Law, §.266 (1961). The state is not attempting to

convict a successful habeas corpus applicant of a substantive

offense for which he was already acquitted; he is discharged

from custody, not -from the penalty.

“A second reason dissuading a federal habeas corpus court

from interfering with a state court’s imposition of a longer

sentence, in renewed criminal proceedings, is the recognition

and respect for. the delicate federal-state relationship, ex-.

’ amined by this Court in Miller v. Boles, supra 248 F. Supp. 49

(N. D. W. Va. 1965).

The third and most compelling reason for judicial restraint,

however, is the fear of undermining the traditional role of

i“ a. ;

the trial judge. While it may. be unconscioriable to place a

petitioner in a dilemma, the Court, where possible, must also

respect the function of the trial, i. e., ii ttt judge. Public

policy so dictates.

It goes without saying that a tial’ judge is singularly quali-

fied to pass sentence on a defendant. Not only has he in most

instances had the beriefit of pre-sentence reports, compiled by

that court’s competent officials, but he also has had the oppor-

tunity to observe, first hand, the demeanor of the defendant.

Only the trial judge is able to take into account the deférdant’s

personality and character. A trial court’s liberation is vital

in justly determining the desirability and extent of retribution

or rehabilitation, as the case may be, of the defendant and in

determining what type of institution defendant should in good

conscience be committed (e. g., maximum or minimum se-

curity). Moreover, it is the trial judge, rather than a post

conviction reviewing judge, who is most aware of the

actual as well as the extenuating circiimstances of the de-

fendant’s crime. Consequently, it is the trial judge who is best

equipped to consider the degree of the crime’s heinousness and

the amout of punishment or compassion merited. These no-

tions, regarding the singular qualifications of the trial judge

in sentencing, have been carefully and studiously -built’ into

our judicial system; they obivously underlie the basic differ-

ence, and historic limitations, between the trial courts, on the

one hand; and the appellate courts, on the other.

In Shear’s case, where following his intial arrest, he pleaded

guilty to the two charges, and, therefore, avoided the necessity

for a trial, the first sentencing judge may not have had a mean-

. ingful opportunity to weigh Shear’s character and to consider

the other important, intangible factors which play a vital role

in the determinination of a sentence. Neither did the- first

sentencing judge have the opportunity on trial to consider

fully the circumstances and details of the offense. Conse-

’ quently, he was not able to give to these phases of Peti-

tioner’s case the necessary weight in: the determination of

- Shear’s sentences. It may well be that when the occasion did

arise for a trial, the trial judge, i. e., the second sentencing

judge, was made more ‘aware of the serious nature of the

_ crimes involved, than had been the first sentencing judge, who

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did not have the opportunity to sit through a trial where all

the circumstances of the two armed robbery attempts were |

brought to complete focus.

In other words, Shear’s second sentencing judge may have

been afforded observation of factors not available to Shear’s

first sentencing judge. The addition of these factors may have

been the reason for the harsher penalty.

What the Court says is that there are good and valid reasons.

which restrain a habeas corpus court from interfering with the

more severe sentence imposed.on a succesful Habeas corpus

applicant. The Court, however, does not overlook that under

certain circumstances a petitioner’s plight cannot be ignored.

_ The means of arriving at this reconciliation, he our feels,

is by recognizing and accepting the proposition that there is

* a distinction between those cases where the second sentencing

' judge has acted with.retributive intent, or as an inquisitor,

from those cases where Hie has conscientiously fulfilled his role.

as a trial, or sentencing, ‘judge.

This step, or a similar one, must be taken. “If not, a court

_ would. have, to conclude either that a successful habeas corpus

applicant, subjected to a longer second ‘sentence, -has never

been Constitutionally prejudiced, or that a sentencing judge

is never entitled to impose a sentence iri any way more severe

than the first. To establish either*as a stark, mechanical rule,

however, is to beg the issue and do justice to neither the ag-

grieved petitioner nor to society and its trial courts.

Distinguishing these two types of cases, in the manner above

. Suggested, is helpful in singling out those instances in which

the petitioner has been Constitutionally aggrieved.

But to conclude that a court should distinguish these two

types of cases, based on the sentencing judge’s attitude, with-

out saying more, is to leave the question half-answered, for the

underlying issue then would be:. “When has the sentencing

judge acted in a retributive manner, or as an inquisitor, rather

than as a judge?” Cf: Smartt v. Avery, 35 U.S.L. Week 2381

(C.A. 6, Jan. 6, 1967):

“The (Tennessee)— parole board’s ‘eeaaiiaiies on its face,

assesses an ddditional year of incarceration prior to con-

sideration for parole of any state prisoner who files a peti-

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tion for writ of habeas corpus and has the same denied.

The right of a state prisoner to petition for writ of habeas

corpus in the federal.courts on a claim that he is in cus-

_ tody in violation of the Constitution or laws of the United

States is squarely authorized by federal law. The exer-

cise of:this right may not be denied by state law. No more

may its exercise be discouraged by the withholding of a

privilege that would otherwise be accorded by state law

or regulation. ~

~ To answer the issue fully, a habeas corpus court needs stan-

dards or criteria, by which it may review,.in an objective man-

ner, the second sentencing court’s intent.

' This Court recognizes the futility of cnshhaitiltalin’ stan-

dards meant to apply to abstract, theoretical situations. The

' major accomplishment is to articulate criteria which have

clear relevance to the instant cnne, and to the facts of each sit-

uation.

Said in natin fashion, once a court. adopts ‘the general

' proposition that a second sentencing judge cannot act out of |

retribution, or as in inquisitor, but must remain a judge, in

the true sense of the word, it then must take a second step and

adopt criteria by which to determine, in an objective manner,

‘if the second sentencing judge has remained loyal to judicial

Objectivity. By so doing, a court attempts to fairly reconcile .

‘(1) the dilemma which'a habeas corpus petitioner faces, and

(2) the freedom of discretion which any trial judge must en-

joy.

Another recourse for a habeas corpus court, in determining

the existence or absence of retributive intent, would be to de-

pose the sentencing judge, or subject him to a plenary hearing.

The propriety behind such an act, however, is extremely ten-

uous, and, despite the analogous provisions of 28 U.S.C. §2245,

such a procedure, novel to the history of American jurispru- -

dence, would be ie aa to our historic concept of federal-

state relations.

Even more distasteful and unpalatable is the issue of ‘was

er a state sentencing judge could be compelled to testify, in

a federal plenary hearing, as to his motives.

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Appropriately, the federal habeas corpus court’s forte is to

apply ad hoc standards, and in this manner strive for an ob-

jective determination.

The Court does not now attempt to siti every criterion.

or standard conceivably ‘applicable in determining whether a

sentencing judge has stepped out of his traditional role and

into that of a prosecutor, but looks only to those which are

applicable to the present case.

One standard to be considered is tei the second sen-

tence, or sentences, is, or are, more severe than the first. It

can not be denied that the imposition of a more severe sen-

tence could be an act of retribution, outside the dignity of

judicial temperament, and certainly prejudicial to a petitioner.

This criterion, as is so often the situation, is not singularly.

dispositive of an answer. The mere fact that the same judge

has given a successful habeas corpus applicant a more severe

sentence than that initially imposed does not necessarily im-

ply a retributive intent on the judge’s part. As has been in-

dicated, the trial judge may have perfectly plausible reasons —

for his actions. It is one factor to be considered.

Two additional criteria, as apply to this case, would be

whether the second sentencing judge objectively manifested

a hostile attitude, either through words or actions, and whether

_the second sentencing judge was in any. manner related to the

first sentencing judge, either through family, business or close

social connections, or to anyone participating in the first pros-

ecution. - t,

A final, and quite important, standard is whether the sec-

ond sentencing judge is the same judge who had imposed the

first sentence or sentences. It seems tenuous to suggest that

’ the mere imposition of a more severe sentence, without more,

amounts to a Constitutional deprivation. It is a much closer

question, however, when the more severe sentence is meted

out by the same judge who imposed ,the first sentence.. It

would not seem wise to discdunt the possibility of retribution.

To repeat, no one of these standards; in itself, is conclusory

as to whether the sentencing judge had stepped out of his tra-

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ditional role and into that of an inquisitor. Rather, all the

criteria must be looked at in toto and a determination made, os

_ giving to each its due weight. ¢

wr

Looking at all the applicable factors in inas’s case, conse-

quently, the Court notes, on one hand, that Shear has been

subjected to 2 more severe sentence. His ten year term was

increased to approximately thirty. On the other hand, the

Court fails to find any indication of personal hostility by the

“judge who imposed the two consecutive fifteen year sentences

of which Shear now complains. The record makes no such dis-

closure. To the contrary, the trial transcript of felony indict-.

ment number 214 discloses that the trial judge was very cog-

nizant of Shear’s rights under Escobedo and was conscienti-

ous in providing Shear with a fair trial. The Court also fails

to find any meaningful relationship between the second sén-

tencing judge and anyone connected with Shear’s first con-

victions. Shear has stated that the state prosecutor in his

trials, after he had been awarded federal habeas corpus relief,

was a brother-in-law to the first-sentencing judge. He may be

correct in his assertion. But this relationship suggests nothing

concerning the attituted of the second sentencing judge. The

second judge, to repeat, was not the same judge who had first

imposed the two ten year concurrent terms.

Therefore, looking in toto at all the criteria applicable to

Shear’s case, this Court must conclude that it cannot be said,

in an objective manner, that Shear’s second sentencing judge, ~

when passing sentence, had ceased to perform his function as

‘a judge and had taken on the role of an inquisitor.

No doubt, the thought of Shear’s spending an additional

twenty years in prison merits sober refiection, both by this,

and any other court to which Shear applies for post conviction

relief. But this fact is not singularly a valid reason to impose

a substitution of judgment by a habeas corpus court under the

guise of Constitutional infraction.

A sentencing court, absent retributive intent on its part, and

for cause which it conscientiously deems sufficient, either has.

the power, or does not have the power to impose a stiffer sec-

ond sentence. If it does have the power, a conclusion ‘which

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this Court adopts, then it should not be abridged in its un-

biased use of that power. A post conviction review court can-

. not thereafter conclude- that a five year additional sentence

* would have been Constitutionally permissible, but a twenty

year sentence would be inconsistent with due process. A habeas

corpus court cannot assume the. function and discretion of-a

sentencing court. . This Court is not entitled to judge the Con-

stitutionality of Shear’s second sentences merely by their

length.

Of course, a sentencing court, if motivated by retribution, .

could not impose a stiffer second sentence without Constitu-

tionally prejudicing a successful habeas corpus petitioner. But,

as has been indicated above, it cannot here be objectively con-

cluded that Shear’s second sentences were motivated by retrib-

utive intent.

- In the recent case of Patton v. North Cardtine, 256 F. Supp.

225 (W.D. N.C. 1966), where the federal habeas court had to

decide questions identical to the present ones, it was concluded

that harsher punishment may be Constitutionally imposed at

a second trial if there is a discernible reason for so doing.

For two reasons, “therefore, our present holding does not con- .

flict with Patton. First, there may well have been a discern-

ible reason in this case for giving Shear a more severe sentence

since the second sentencing court, as previously indicated, was

able to hear testimony concerning the details of the two of-

fenses and was able, over 4 meaningful period of time, to ob-

serve the petitioner’s attitude and weigh all the intangible fac-

tors which constitute a trial court’s determination of sentence.

This the first sentencing judge was not able to do, to the same

' extent. To repeat, this Court cannot now say that the evidence

adduced at trial, and the intangibles thus able. to. be consid-

ered, were not discernible reasons for imposing a more severe

punishment than that initially imposed. Such action by this

Court, sitting in post conviction review, would totally under-

mine the function of a sentencing court.

Secondly, one of the ad hoc standards eaten by this

Court in Shear’s case, to weight objectively the second sen-

tencing judge’s attitude, would necessitate a diametrically op-

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posite result if used in Patton. In Shear’s case, there is neither

indication, nor suggestion, that the second sentencing judge

manifested any personal hostility towards the petitioner,

whereas in Eddie Patton’s case there is a contention, appar-

ently unrefuted, that prior to imposing sentence the second

sentencing judge remarked that he “would teach these jail

house lawyers.” It is obvious, therefore, that in Patton’s case

there is much. more reason, in arriving at an objective deter-

mination of the second sentencing judge’s attitude, for con- -

cluding that the second sentencing judge had acted the role

of an inquisitor.

In’ Patton v. North Carolina, supra, 256 F. Supp. 225, it was

held that denial of credit at a second trial for time already

served is a violation of the Fourteenth Amendment.

It would appear from the: record that Shear was not given

credit for the time he had already served under his first sen-

tences.. Since Shear is not entitled to his immediate release,

however, the traditional theory precludes habeas corpus at

this time. Neither do the circumstances merit an exception to

_ the traditional rule. See Tacker v. Peyton, 357 F. 2d 115 (4th

Cir. 1966). Therefore, the Court will not at this time rule

upon this question. ‘

Finally, in concluding this commentary, the Court is obliged ;

to note that incidental to the contentions inherent in this

litigation; and‘in a great sense overshadowing the specifics

alleged in every federal petition for habeas corpus, is the

vaguely hinted or insidiously suggested innuendo, or the out-

right declaration, that trial court judges cannot be trusted to

exercise and perform the responsibilities of their positions; ~

that our system of jurisprudence has ‘somehow degenerated

into a shabby, unashamed predator on the sensibilities, hu-

manities and personal respectability of those who are charged

with violations of society’s standards of behavior.

If thé past is prologue, the present is permeated with fear,

unfounded, but. gaining acceptance in many quarters at an

alarming rate, that is unjustifiably destroying the public faith.

and trust necessary to the honorable administration of our

system of law and order. 9 :

PONIES MUTI OM Dre neem

a eR ed at CON Ee ae

tee

ee eae) Vee

3. ie werner

~~16-A

Apart from the principles ‘and legalities that determine the

issues, this Court does not subscribe to the theory that the trial

courts of our land are staffed with men who are flippant and

frivolous to the study and application of the science of law.

This Court does subscribe to the belief that the state trial

courts of our land are genuinely concerned; recognize the

need of wisdom and deliberation in our court system; and

constantly strive to obtain objective, unprejudiced undér-

standing of the individuals brought before them. This Court

believes that the state trial courts are conscientious, fair, con-

siderate and cooperative in endeavoring to establish and main-

tain the proper balance between offending individuals and an

offended society.

Undoubtedly there is no profession in today’s complex -

society, and this has been true throughout history, that has

dared to exercise more independence of thought and action

than those of the law profession; that have dared to stand

boldly and unafraid, to voice their convictions and beliefs,

regardless of the prevailing notions and emotional riptides of

the time.

The courage and strength of the membership of the legal

‘ ‘community in today’s Nation, often characterized as cowardly,

“afraid to get involved” society, is a refreshing and wholesome

joinder with the strength of character that has given us the

. system of law and order we enjoy today.

This Court can never abandon its belief that every court,

federal, state and local, holds a deep and abiding sense of

personal and professional pride, justified by its work product,

of assisting the helpless and aiding the oppressed, while at the

same time, and compatible with the foregoing, maintaining a

healthy and vigorous respect for the obligation: to maintain

a government by the governed and to preserve a nation gifted

with as well as dedicated to a rule of law. i

Blackstone (Commentaries Bk. 1, 69) in speaking of judges

said “They are the depositories of the ldWs, the living oracles,

who must decide in all cases of doubt, and who are bound by

an oath to decide according to the law of the land.” Assuredly,

we recognize that public security against an abuse of such

responsibility rests on the responsibility of the individual em-. .

17-A

powered with the decal and who is bound by the obliga-

tion. , .

_ As in the instant case, when a judge ianines a longer sen-

tence after a new trial, he leaves himself open to a charge

of prejudice and injustice. What Holmes called “the appear-

ance of justice” has not been preserved. The easy path for

the sentencing judge, in a second instance, would be to follow

the initial sentence. In some cases the imposition of a more

severe sentence requires a special form of judicial courage.

The charges against the trial judge, which he knows will come,

_are obvious. His ‘sole. defense to such charges is his personal

integrity as a jurist and as a person. Professionally, ethically,

and perhaps to the detriment of society, justice and our sys-

tem of law, the accused judge stands mute to the charges ‘and

clamor of evil and wrongdoing. If he has decided in good

conscience that this is the appropriate retribution owing to

society, we must realize that. he is duty bound to exercise that

judgment. There is no reason why the first or initial sentence

should be considered any more sacrosanct than the second or

succeeding sentence. To hold otherwise, would be to say that

the judicial branch of our government is not to be trusted

with the discretion that the’ legislative bodies have seen fit

to repose for management in the courts.

The late Chief Justice Bolitha J. Laws of the United States

District Court for the District of Columbia once noted:

“The sentencing of the convicted offender demands of

the trial judge the best that he has in wisdom, knowledge,

and insight, as a jurist and as a human being. Difficult

as it is to do, he must constantly weigh in the balance

a future course of life of the individual before him with

his judicial responsibility for the ieee of the com-

munity.” ;

Writing recently in 45 Nebraska Law Review 499, 509 (1966), .

‘Chief. Judge Theodore Levin, of the United States District

Court for the Eastern District of Michigan, concluded _ his

‘ remarks with this statement:

“Courts, in the sentencing of convicted persons, must be

something other than mechanical instruments of punish-

SNARE N REE ERIE MITEL ote HF

Ce ee Le

: 3

18-A

ment. The symbolic blindfold on the statute of Justice

was never intended to obscure from the sight of the judge

an understanding of the human being who stands before .

him awaiting judgment. The quality of sentencing must

_ concern us no less than the quality of the entire judicial

process which preceeds it.” __

The judge’s responsibility in sentencing an individual is a

difficult, arduous and exacting responsibility. There can be

no simple or rigid formula imposed upon him in carrying out

the sentencing function, which is critical to the fulfillment of

_ justice as well as the prevention of crime.

It should be noted that more and more trial court judges are -

recognizing that the sentencing of offenders who come before

them is a most difficult assignment. More and more the trial

court judges are attending meetings and conferences to dis-

cuss sentencing procedures to find new and better ways to dis-

charge their sentencing responsibilities. This is-another indi-

- cation of the dedication and conviction which historically at-

‘tends the discharge of responsibilities by the enna of

the legal profession.

The threat of harsher sentences on successful habeas corpus

applicants certainly can become a tool by which to prevent

state or federal prisoners from seeking. redress of Constitu-

tional deprivations previously suffered. It also places would-

be petitioners in a dilemma. But the need for preserving the

traditional role of the sentencing judge, who has acted in a con-

scientious manner, demands that each case, wherein a suc-

cessful habeas corpus applicant has re¢eived a more severe

sentence in new criminal proceedings, be considered on an ad

hoc basis. 7 :

Having done so in this case, and in the manner above indi-

cated, the Court is of the opinion that Shear was not Consti-

tutionally aggrieved. Therefore, an order will be entered,

denying the writ of habeas corpus. :

Rosert E. MAXweEL

United States District Judge

February 3, 1967

19-A

EDDIE W. PATTON, Appellee,

ti

Vv:

STATE OF NORTH CAROLINA,

Appellant.

No. 11005..

_ The question raised by this appeal is ‘whether a defendant

may be sentenced to a°longer term of imprisonment at his

second trial than he received after his first conviction, vacated

on constitutional grounds. '

Unrepresented by counsel, the petitioner, Eddie W. Patton,

was tried in October, 1960 and convicted of armed robbéry

after a plea of nolo contendere, entered ‘at the close of: the

State’s evidence. He was sentenced to prison for a term of

twenty, years. No appeal was taken, but in April 1964, Patton

applied for a state post-conviction hearing, and on the basis of

the Supreme Court’s landmark decision in Gideon v. Wain-

- wright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), was

awarded a new trial.

Patton. remained in custody, and on February 17, 1965, after

tendering a plea of not guilty, he was again convicted by jury

on the original indictment. This time he had the assistance

of counsel, who called the court’s attention to the fact that

the defendant had been continuously imprisoned from June

10, 1960 and had already served nearly five years for the

offense. Although the trial judge paid lip service to the idea

of crediting Patton with that portion of the initial twenty-year

sentence already served, he actually increased Patton’s punish-

ment by imposing, in effect, a twenty-five-year sentence and

then deducting five years for the time served.! Thus, as a

““THE COURT: Before I announce punishment, I will take into con-

sideration the fact that he has served four years, or nearly five years.

s ¢ 8

“THE COURT: * * * I would give you five more years than what I

am giving you, but I am allowing you credit for the time that you have

served. Judgment of the Court is that the Defendant be imprisoned

in the State’s Prison for a term of twenty years * * *.”

tala YORI S Di ee ae cs Mma

20-A

result of seeking and obtaining a new ‘trial, the prisoner, who

originally would have been eligible for parole in October |

1965, now, it is agreed, will not become eligible until February

1970.

Regardless of whether the action of the sentencing judge is is

verbalized as.a twenty-year sentence: without credit for the

five years already served, or as a twenty-five-year sentence

with credit, the practical effect of the second judge’s sentence

_ is to compel the defendant to serve five years longer to become

eligible for parole, than he would have been required to serve

had he not asserted his constitutional right to a fair trial. |

Patton applied in August 1965 to the District Court for a

writ. of habeas corpus contending that a harsher sentence fol-

lowing a second conviction for the same offense, after the

initial conviction has been vacated on. constitutional grounds,

- is a denial of due process of law; is inconsistent with the pro-

hibition against double jeopardy; and is a denial of equal pro-

tection of the law. The District Court held Patton’s sentence

unconstitutional on the ground that the increased punishment - %

- violated the due process and equal protection clauses of the ©

Fourteenth Amendment. Patton v. North Carolina, 256 F. Supp.

' 225 (W. D.N. C. 1966).

I. Exhaustion of State Remedies

[1] The State has misconceived the import of Patton’s argu-

ments. It interpets his contention to be that the second trial

judge, in imposing a more severe sentence, was motivated by

prejudice because of the defendant’s successful attack on the

initial conviction. The State’s position on this appeal is that

such an allegation has never been presented to the state courts,

and it reasons that Patton having failed to exhaust available

state remedies or to show that circumstances existed render-

ing the state process ineffective to protect his rights, the Dis-

trict Court lacked jurisdiction under 28 U.S. C. § 2254. The

District Judge carefully reviewed the relevant North Carolina

cases, however, and concluded that the effect of the opinions ~

of the state supreme court is to hold that a defendant is not en-

titled to credit for time served and may receive an increased

sentence (unless the subsequent sentence plus the time already

21-A

served under the invalid first sentence should exceed the

statutory maximum) .2 We share the District Court’s view that

since further resort to the North Carolina courts would be

futile, it is not required.* ' a

“ Ete, } '.- JI. Due Process

The simplistic rationale traditionally offered for denying

credit and permitting a harsher sentence at a second trial is

that’ the prisoner, by successfully attac. his initial convic-

tion, has “voided” or “wiped out” all consequences of that con-

viction—including the sentence imposed’ by the first judge

and any time served under. that sentence.* In State v. White,

262 N. C. 52, 136 S. E. 2d 205 (1964), the North Carolina Su-

preme Court statéd that a defendant

“is not entitléd as a matter of law to credit against the-

second sentence for time served under the original sen-

tence. The rationale of the decisions seems to be that the

defendant in seeking and obtaining a new trial must be

*State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633 (1965); State v. Slade,

264 N.C. 70, 140 S.E.2d 723 (1965); State v. Anderson, 262 N.C. 491,

137 S.E.2d 823 (1964); State v. White, 262 N.C. 52, 136 SE.2d 205

(1964); State v. Williams, 261 N.C. 172, 134 S.E.2d 163 (1964).. :

*Our conclusion is strengthened by the recent decision in State v.

Pearce, 268 N.C. 707, 151 S.E.2d 571 (1966), decided since the District

Court’s action. In that case, the defendant’s sentence was increased

following his second conviction, even though “[t]he evidence on the

new trial was not essentially different” from that adduced at the original

trial.‘ In his appeal to the state supreme court, the defendant relied

on Judge Craven’s opinion here under review, to support his argument

that any increase in the punishment imposed after a second conviction

was in effect a penalty for seeking review of.an invalid conviction, and

a violation of his constitutional rights. The Supreme Court of North

Carolina, however, declined to follow that opinion, stating flatly that:

“w]e adhere to our former decisions.” Id. at 708, 151 S.E.2d at 572.

‘Plainly, the trial court regarded Patton’s successful attack on his

original unconstitutional conviction as a waiver of the benefit of nearly

_ five years’ imprisonment.

a

“THE COURT: Are you referring about the prior sentence that was

imposed on you? es

DEFENDANT: Yés, Sir.

THE COURT: That was wiped off... sd

DEFENDANT: Yes, I understand that. : '

THE COURT: Mr. Patton, as your motion, because you moved that

it be—and alleged and the Court found that your constitutional rights

had been violated upon your motion, and that was all done away with.

We are now confronted with a new day.”

Rel

22-A

deemed to have consented to a wiping out of all the con-

sequences of the first trial.”5 . it”

262..N. C. at 56,136 S, E. 2d at 208 (Emphasis supplied.)

The principle of fair dealing which impels judges in passing

‘*- sentence to take into. account the time a defendant was de-

prived of his liberty while awaiting trial, Dunn v. United States

376 F.2d 191 (4th Cir: Feb. 24, 1967), insists even more in-

exorably that-he shall: not be finessed out of credit for time

he was forced to serve under an invalid sentence. ‘The trial

- and conviction may be voided on appeal, but the time illegally

exacted by the unconstitutional sentence is an irreversible fact.

It’is grossly unfair for society to take five years of a man’s

lifé and then say, we now acknowledge that this should not

have happened, but we will set éverything‘right by refusing

*: to recognize that it did happen. This is an unworthy pretense.

- Courts should.not be astute to fashion legal fictions to attain .

unjustends® — a

‘It is noteworthy, however, that the North Cardlina Supreme Court .

_has, on occasion boggled at this Draconian. doctrine. In State v. Weaver,

264 N.C. 681, 142 S.E.2d 633 (1965), the court quoted with approval

from an opinion by the Massachusetts Supreme Court, Lewis v. Com-

monwealth, 329 Mass. 445, 108 N.E. 2d 922, 35 A.L.R.2d 1277 (1952),

“as follows: :

" “Tt is hardly realistic to say that nine months in the State prison

amount to nothing—that since thé petitioner ‘should not have been

‘imprisoned as he was, he was not imprisoned at all.’ [Citation omitted. ]

Moreover, * * * the time served before the reversal of the sentence

might in some other’case be so long that glaring and intolerable in-

justice would result if-the time served on a first ‘sentence should not

be taken into aecount in imposing a second sentence. It is not even

technically-torrect to ‘say that the first sentence must now be deemed

to have been a nullity. It was not a nullity when it was imposed or

while it was being served.” _. .

Id. at 685, 142 S.E.2d at 636. (Emphasis supplied by North Carolina

Supreme Court.) . The North Carolina court added that “(t]he hard

- fact of his [Weaver’s] actual service of sentence * * * cannot be

ignored.” Id. at 686, 142 S.E.2d at 637. Weaver, however, was a case

* in which the second sentence imposed on the defendant was the max-

imum allowable under the statute, so that added to the time already

-served under the invalid first sentence, the punishment exceeded the

statutory maximum. ; age

*Judge Edgerton, in King v. United States, 98 F.2d 291, (D.C.Cir.1938)

characterized as “in the vein of The Mikado” the government’s argu- -

ments that because the initial sentence was void, an accused “has served

‘no sentence but has merely spent time in the penitentiary,” and, that

since the defendant “should not have been imprisoned as he was, he

_was not imprisoned at all.” He fatetiously suggested as logical corol-

to’ such arguments that the accused should also be “liable in

ce ae for the value of his. board and lodging, and criminally

ble for obtaining them by false pretenses.” Id. at 293-94.

23-A.

The risk of a denial of credit or the risk of a greater sen-

tence, or both, on retrial may prevent defendants who have

been unconstitutionally convicted from attempting to seek rev

_ dress.? For this reason, the District Court declared that pred-

icating Patton’s constitutional right to petition for a fair trial

on the fiction that he has consented to a possibly harsher pun-

ishment, offends the due process clause of the Fourteenth

Amendment.” ‘It, would confront the prisoner with the un-

happy choice’of either abandoning his constitutional right-to a

‘fair trial and serving out his prison term under the invalid .

sentence, or exercising that right under the hazard, in the

event of a second conviction, of being treated as though the

years of imprisonment already served had never occurred.®

"Judge Craven himself has received a letter which vividly illustrates

‘a prisoner’s fear of obtaining an increased sentence following a new

“Dear Sir: re ;

I am in the Mecklenburg County jail. Mr. —--__-_---- .. chose to re-try

me as I knew he would.

*- * *

Sir the other defendant in this case was set free after serving 15

months of his sentence. I have served 34 months and now I am to be

tried again and with all probility I will receive a heavier sentence

then before as you know sir my sentence at the first trile was 20 to

30 years. I know it is usuelly the courts prosedure to give a larger

aa when a new trile is granted. I guess this is to discourage

etitioners. ?

Your Honor, I don’t want a new trile I am afraid of more time * * *.

Your Honor, I know you have tried to help me and God knows I

apreceate this but please sir don’t let the state re-try me if there is

any way.you can prevent it. hh Ms

é' Very truly yours”

256 F.Supp. at 231 n. 7. (Italics omitted.) :

™Cf. State v. Wolf, 46 N.J. 301, 306, 216 A.2d 586, 590-591 (1966).

There the defendant, convicted of first-degree murder with a jury

recommendation of life imprisonment, succeeded in obtaining a reversal

on the basis of certain errors (non-constitutional in nature) committed

at the trial. In holding that the State was barred on retrial from again

seeking the death penalty, the Supreme Court of New Jersey found

it unnecessary to decide whether the double jeopardy clause of either

the federal or the state constitution, or the due process clause of the

Fourteenth Amendment ‘was applicable. The unanimous decsiion was

based instead on certain “procedural policies” which were “of the

essence of the administration of criminal justice.”

"That this is a very real risk and not merely hypothetical is indicated

by an informal survey conducted by the Duke Law Journal which

revealed that in 72% of the retrials occasioned by the denial of counsel

at the first trial, credit for time already served was effectively denied.

Note, Increased Sentence: and Denial of Credit on Retrial Sustained

Under Traditional Waiver Theory, 1965 Duke, L.J. 395, 399 n. 25.

(ees pieertra se

24-A

[2] This is like the “grisly choice” discountenanced in Fay

v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). “The

law should not, and in our judgment does not, place the de-

fendant in such an incredible dilemma.” Green v. United

States, 355 U. S. 184, 78 S. Ct. 221, 2 L. Ed. 24.199 (1957).°

North Carolina deprives the accuséd of the constitutional right

to a fair trial, then dares him to assert his right by threaten-

ing him with the risk of a longer sentence. It may not exact .

this price. Enjoyment of a benefit or protection provided by

law cannot be conditioned upon the “waiver” of a constitu-

tional right.!9 ; j

Indeed, this circuit has already held it impermissible to force

upon an accused the risk of more severe punishment as a con-

dition for securing a constitutional right. In United States v..

Walker, 346 F. 2d 428 (4th Cir. 1965), the defendant was ini-

tially sentenced in his absence. When he successfully attacked

the sentence on this ground, he was resentenced to a longer

term. Judge Bryan, speaking for the court criticized the tri

judge’s disregard of the original sentence: . ,

"In Green, it was argued that the defendant had “waived” the benefit

of his first trial, in which he escaped conviction for a higher offense,

as a condition for appealing his conviction of the lesser one. See United

States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 859 (2d Cir. 1965),

where an analogous argument was rejected with the observation that

it “ignore[s] the elementary psychological realities” and presumes “a

barter theory of fairness”; and United States v. Walker, 346 F.2d 428

(4th Cir. 1965), declaring that a défendant’s motion to vacate his defec-

tive sentence could not be considered a waiver.

“In reality, whatever his words to the Court, Walker obviously did

not desire to chance a greater term. If in law his wish ‘to vacate’ *

embraced that unnatural decision, he should not be held to it.”

346 F.2d at 431. :

The Su he Court has on numerous occasions articulated its concern

that access to post-conviction remedies be unfettered. See e.g., Fay v.

Noia, supra; Douglas v. State of California, 372 US. 353, 83 S.Ct. 814,

9 L.Ed.2d 811 (1963); Green v. United States, supra; Griffin v. People

of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ;

Cichos v. State of Indiana, 385 U.S. 1020, 87 S.Ct. 699, 17 L.Ed.2d 559

(Nov. 14, 1966) (Fortas, J., dissenting) ; United States v. Ewell, 383

U.S. 116, 126, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (Fortas J., dissenting).

“See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493,

14 L. Ed.2d 398 (1965); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,

14 L.Ed.2d 106 (1965); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790,

10 LEd.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332,

2 L.Ed.2d 1460 (1958); Frost & Frost Trucking Co. v. Railrédad Comm’n,

271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 (1926). See also Van Alstyne,

In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal

Appellant, 74 Yale L.J. 606 (1965); Note, Unconstitutional Conditions,

73 ervi. Rev. 1595 (1960).

25-A

“(T]he import of the [District] Court’s ruling was to con-

dition his Constitutional right to seek correction upon the .

risk of another sentence, then unforeseeable in nature and

extent. Thus, though not so intending, the Court poten-

tially penalized him for asserting the privilege. This the

law forbids * * *, [Citing Green v. United States, 355 _

U. S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 184 (1957).}

* * *

It [the ‘cod harsher sentence] was, in sum, the pro-

duct of a procedure which could prove either deterring or

punitive of an insistence on Constitutional privileges.” mht

346 F. 2d at 430-431.

The District Court held that Patton’ s punietideent could not

be increased unless evidence justifying a harsher sentence ap-

peared in the record, and that the State must bear the burden

of showing that such facts were introduced at the second trial,

since “where the record disclose[d] no colorable reason for

harsher punishment,” the effect would be to inhibit the con-

stitutional right to seek a new trial.!2 256 F. Supp. at 236. We

agree with the District Court that it is an impossible task for

the prisoner to prove improper motivation of the trial judge.

It is equally impossible, and most distasteful, for federal courts |

to pry into the sentencing judge’s motivation to ascertain

whether vindictiveness played a part.

We do not think, however, that a defendant’s rights are ade-

quately protected even if a second sentencing judge is re-

stricted to increasing sentence only on the basis of new evi-

dence. We are in accord with the First Circuit, which has

recently held that a sentence may not be increased following

a successful appeal, even where additional testimony has been

introduced at the second trial.

““Denying a benefit because of the exercise of a Tight in effect

penalizes that exercise, making it tantamount to a crime.

constitutionally protected activities seems clearly a violation of sub-

stantive due process.”

(1900)° Unconstitutional Conditions, 73° Harv.L.Rev. 1595, 1599- 1600

“One commentator has noted that ‘the strongest reason for denial of

credit is the desire of courts to discourage appeals. Whalen, Resentence

without Credit for Time Served: Unequal Protection of the Laws, 35

Minn.L.Rev. 239, 248 (1951).

SS Gyan

r aah ty oan ey ae ee re es

26-A

“The danger that the government may succeed in obtain-

ing more damaging evidence on a retrial is just as real as

the danger, for example, that the judge on his own may

wish to reconsider, unfavorably to the defendant, the fac-

tors which led to his original disposition. We think that

there must be repose not merely as to the severity of the

court’s view, but as to the severity of the crime.”!2#

/

Marano v. United States, 374 F. 2d 583, 585 (1st Cir. Mar. 23,

1967). Contra, Starner v. Russell, 378 F. 2d 808 (3rd Cir. May

25, 1967).

_ An analogy may be drawn between the solution adopted by

the Supreme Court in Gideon v. Wainright, 372 U. S. 335, 83

S. Ct. 792, 9 L. Ed. 2d 799 (1963), in response to the problems

raised by Betts v. Brady, 316 U. S. 455; 62 S. Ct. 1252, 86 L. Ed.

1595 (1942), and the issue here.!° The Court had earlier held

in Betts that, whether the conviction of an unrepresented de-

fendant was a denial of due process depended upon whether

“special circumstances” existed which would, in a particular

. ease, “constitute a denial of fundamental fairness.” 316 U. S.

. at 462, 62 S. Ct. at 1256. But in Gideon, there was forthright

recognition that to require such a showing, in an area in which

the chance of undetectable prejudice is so great, was too heavy

a burden to cast upon an accused. The controlling point was

not that the absence of counsel necessarily prejudiced the de-

fendant, but that it created the opportunity for unfairness.

For this reason, the Gideon Court made the presumption of

injury irrebutable. 7 ; |

[3] Similarly, improper motivation is characteristically a

force of low visibility. In order to prevent abuses, the fixed

policy must necessarily be that the new sentence shall not ex-_

-ceed the old. Seldom will this policy result in inadequate pun-

1%Marano held flatly that it -would be improper for the court to

increase the sentence on the basis of additional testimony which came

out at the new trial, but suggested by way of dictum that in some

circumstances it might not be “inappropriate for the court to take

subsequent events [as disclosed in a new presentence report] into

consideration, both good and bad.” As to the dictum, we do not agree,

for the reasons developed in the text of this opinion. :

*Cf, Note, The Defendant’s Challenge to a Racial Criterion in Jury

Selection: A Study in Standing, Due Process and Equal Protection, 74

Yale L.J. 919 (1965). : |

27-A

ishment. Against the rare possibility of inadequacy, greater

weight must be given to the danger inherent in a system per-

mitting stiffer sentences on retrial—that the added punish-

ment was in reaction to the defendant’s temerity in attacking

the original conviction. Even the appearance of improper

motivation is a disservice to the administration of justice.

*)

‘ III. Equal Protection

The equal protection clause of the Fourteenth Amendment

likewise compels a rule barring a sentence in excess of ‘the

one invalidated, and this protection extends even to one seek-

ing to avail himself of a state’s post-conviction remedies be-

cause of non-constitutional errors in the original trial.!4

North Carolina strictly forbids an increase in a defendant’s

sentence after the trial court’s term has expired and service of

sentence has commenced.*5 Thus the threat of a heavier sen-

tence falls solely on those who utilize the post-conviction pro-

cedures provided by the State. If the State wishes to institute

a system permitting upward revision of sentences, it must

proceed upon a rational basis in selecting the class of prisoners

it will subject to this threat. It may not discriminate in this

regard against those who have availed themselves of the right:.

to a fair trial. This is an arbitrary classification—offensive to

the equal protection clause.1® As-the court-appointed counsel

for the defendant has put it: ° .

“See Whaley v. North Carolina, 4 Cir., 379 F.2d 221 (decided this day).

*E.g., State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264 (1965); State |

v. McLamb, 203 N.C. 442, 166 S.E. 507 (1932); State v. Warren, 92 N.C.

825 (1885). :

*See McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13

-L.Ed.2d 222 (1964), which declares that classification “must always

rest upon some difference which bears a reasonable and just relation

to the act in respect to which the classification is proposed, and can

never be made arbitrarily, and without any such basis.”

- Id. at 190, 85 S.Ct. at 287 [quoting from Gulf, C. & S. F. R. Co. v. Ellis,

165 U.S. 150, 155, 17 S.Ct. 255, 41 L.Ed. 666 (1897)]. See also, e.g., Morey

v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Skinner v.

Stat@jof Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

The issue has been phrased by one writer as follows: .

“Is there any rational justification for punishing this defendant sub-

stantially more than others who committed the same offense, simply

Fi APN DILAE LIS RONG Fy

28-A

“The risk of a harsher sentence is borne exclusively by

those who pursue some post-conviction remedy. Yet there

is no reason to suppose that the original sentences of this

group are any more likely to warrant review as a class

than the sentences of other convicts who are not subject

to the same risk. The vulnerable class appears to be quite

equivalent to a class described by race, right-handedness,

indigerice, or some other factor equally irrelevant in any

‘proper determination of those whose sentences might ap-

propriately be reviewed.”!7 |

Not only is the classification not a rational means for effectuat-

_ ing any legitimate state policy,.but it also frustrates the pur-

suit of post-conviction remedies provided by the State: Courts

should be especially vigilant to protect access to these reme-

_ because’this defendant was not given a fair trial or was not properly

sentenced the first time?” . i.

Whalen, Resentence without Credit for Time Served: Unequal Pro-

tection of the Laws, 35 Minn.L.Rev. 239, 245 (1951). (Italics in original.)

His answer is that “there is no sound rationale for this treatment of

an unfortunate class of criminal defendants. The injustice and illegality

of the treatment the defendant has received before his first sentence ©

began is no justification for discriminating against him at a second

proceeding.* ** -

“It scarcely needs argument to show that the circumstance that the

defendant has received treatment in the first instance which ‘was

violative of the Constitution is not a valid reason for making the

distinction. Nor is it a policy congruent with our constitution to permit

courts to deny credit for time already served, and thus discourage the

use of review procedures.”

Id. at 251.. .

Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Success-

ful” Criminal Appellant, 74 Yale L.J. 606, 683 (1965).

The instant case does not confront us with the question of whether

‘ the classification is reasonably related to a valid legislative purpose.

_ The distinction we are asked to hold unconstitutional is solely a judicial

_ creation, and thus cannot claim the presumption in favor of a legis-

latively declared public policy. There can be no justification, nor has

the State offered any, for special treatment of this isolated class, Even

if the State were.to attempt to treat as a special class subject to

increased penalties those as to whom additional adverse information

were discovered after the first sentencing, the short answer, as we have

shown, would be that this is prohibited. As Judge Marshall said in

bog States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 859 (2d Cir.

1 $

“It is difficult to understand how the fundamental unfairness inherent

in allowing a prosecutor ‘to ‘do better a second time’ (Mr. Justice

Frankfurter, concurring in Brock v. North Carolina, supra, 344 US.

[424] at 429, 73 S.Ct. [349], at 351, 97 L.Ed. 456) is mitigated by con-

ditioning this second chance on a successful appeal by the accused.”

a

29-A

dies, rather than strive to fashion a doctrine inhibiting the

exercise of the right to review.!>

. Even if the State’s policy is to prevent insubstantial appeals,

limiting the class to successful appellants would not be a ra-

tional means of accomplishing this purpose, since it has too

broad a sweep— chilling meritorious appeals as well as frivo-

lous ones. The inequity of such a system is apparent when it

_ is realized that only prisoners whose appeals have been found

meritorious are subjected to the peril of a higher resentence.

Ironically, those whom the State admits having initially denied.

a fair trial are the only ones who stand to receive greater

punishment. Thus, the threatened class is both underin-

clusive, in that those who do not pursue post-conviction rem-

edies might also have been too leniently sentenced, and over-

inclusive, since not all bearing the risk (and thus deterred

from attacking an unconstitutional conviction) were originally

dealt with too lightly. 19 '

IV. Double Jeopardy

[4] In view of the foregoing, we need not rest our decision

on double jeopardy grounds. We are persuaded, however, that

the constitutional protection against double jeopardy would

*See Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct.

585, 590, 100 L.‘ Ed. 891 (1956), holding that even though “a State is

not required by the Federal Constitution to provide appellate courts or

a right to appellate, review at all,” it cannot, without violating the due

process and equal protection clauses, grant appellate review in such

a way that some convicted defendants are discriminated against. This

thought: was further amplified by Justice Frankfurter, concurring in

the judgment:

“(Neither the fact that a State may a the right of appeal altogether

nor. the right of a State to make an appropriate classification, * * *

nor the right of a State to lay down conditions it deems appropriate

for criminal appeals, sanctions differentiations by a State that have no

relation to a rational policy of criminal appeal or authorizes. the

imposition of conditions that offend the deepest presuppositions of our

society.”

351 U.S. at 21-22, 76 S.Ct. at 592. See also Douglas v. State of Cali-

‘fornia, 372 U.S. 353, 365, 83 S.Ct. 814, 9 L.Ed.2d 811 i (dissenting

opinion).

_' “Tussman & tenBroek, The Equal Protection’ of the Laws, 37 Calif.

L.Rev. 341, 344-53 (1949).

carmen i

Fee Senet Aca hae Ee

= NAM SERDAR, AOR ROPE NMI IE gn

~

80-A

also be violated if an increased sentence or a denial of credit

_ is permitted on retrial.?° '

[5] Double jeopardy, rather than being a single doctrine,

is actually comprised of three separate though related rules,”

prohibiting (1) reprosecution for the same offense following

‘acquittal,22 (2) reprosecution for the same offense following

conviction,2* and (3) multiple punishment for the same of-

fense.24 In Green v. United States, 355 U. S. 184, 78 S. Ct. 221,

2 L. Ed. 2d 199 (1957), the Supreme Court invoked the -first

rule, that an accused may not be reprosecuted for the offense

of which he was acquitted at the first trial. The Court held that

the double jeopardy clause precluded a retrial for first-degree

murder following defendant’s successful appeal from his con-

viction of second-degree murder, on the theory that the jury

in the first trial, by returning a verdict of second-degree mur-

der, impliedly acquitted him of the charge of first-degree mur-

der, m

[6] Ina footnote, the Green majority declared—without fur-

ther explanation— that Stroud v. United States, 251 U. S. 15,

- We find ourselves in full accord with the Second Circuit in United

States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), as to

the resolution of the issue of whether the double jeopardy clause of

the Fifth Amendment is applicable to the states. That court concluded

that at least certain of the policies militating against placing a defendant

twice in jeopardy are “incompatible with due process of law.” Id. at

850. As that circuit -found true of the multiple prosecutions to which

Hetenyi was subjected, similarly, we. think that the North Carolina

practice of permitting an accused, who has successfully appealed his ~

conviction, to bear the risk of an increased sentence:

“lijs that kind of double jeopardy * * * [which] has subjected him

[to] a hardship so acute and shocking that our policy will not endure it

* * * [and] violate[s] those ‘fundamental / principles of liberty and

justice which lie at the base of all our civil and political institutions.’ ”

Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. ©

288 (1937). : as ;

-2See Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965).

“1Jnited States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300

(1896). See Green v.:- United States, 355 U.S. 184, 35 Cal.Rptr. 77 (1957),

for the doctrine of “implied acquittal.” This doctrine has been expanded

to include punishment as well as degree of offense. People v. Henderson,

60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963).

=—, g., In re Nielson, 131 U.S. 176, 9 S. Ct. 672, 33 L.Ed. 118 (1889).

Cf. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d

100 (1963) (reprosecution barred following mistrial due to actions of

the government). }

“BE. g., Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873).

See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct.

374, 91 L.Ed. 422 (1947). ;

31-A

40 S. Ct. 50, 64 L. Ed. 103 (1919), was “clearly distinguish-

able.”25 355 U. S. at 195, n 15, 78 S. Ct. 221, 2 L. Ed: 2d 199.

’ There the defendant was retried for first degree murder and |

sentenced to death, following reversal of his prior conviction,

for which he had received a sentence of life imprisonment.

From a reading of the Stroud opinion, it appears that the. case

was argued to the Court on the theory that the defendant was

put twice in jeopardy for the same offense merely by being

retried on an indictment for first degree murder.*° There is

no indication that the Court was presented with the argument

that the risk of an increased penalty on retrial violates the

double jeopardy clause by being a double punishment for the

same offense. Stroud thus stands for no more than the well-

established propostion that the double jeopardy clause does

_*Justice Frankfurter, however, maintained that it was-all but impos-

sible to distinguish the two situations: -

“As a practical matter and on‘any basis of human values, it is scarcely

possible.to distinguish a case in which the defendant is convicted of

a greater offense from one in which he is convicted of an offense that

has the same name as that of which he was previously convicted but

carries a significantly different punishment; namely death rather than

imprisonment.”

355 _ U.S. at 213, 78 S.Ct. at 237 (dissenting opinion). The Supreme

Court of California, in People v. Henderson, 60 Cal. 2d 482, 35 Cal.Rptr.

77, 386 P.2d 677 (1963), agreed with Justice Frankfurter that Stroud

had been vitiated by Green. Justice Traynor, speaking for the majority,

therefore held that an accused may not be given a more severe sentence

on retrial obtained after a successful attack on his first conviction.

The rationale appears to be that in fixing the punishment at imprison-

ment for life, the defendant was “acquitted” of the death penalty and

hence was protected by the double jeopardy.‘prohibition from “retrial”

on the greater of the alternative punishments. (The double jeopardy

* provision in the California constitution is substantially identical to

that of the Fifth Amendment, so that the court did not have to deter-

mine whether the Fifth Amendment provision itself was applicable.)

The California courts have not limited the application of the double

jeopardy provision to cases in which the prosecutor has sought. on the »

second trial to raise the punishment to the death penalty, but have

also followed the rule laid down in Henderson where longer prison

sentences are involved. People v. Nanga-Parbet Ali, 57 Cal.Rptr. 348,

424 P.2d 932 (Calif.Sup. Ct. Mar. 3, 1967); In re Ferguson, 233 Cal.

App.2d 79, 43 Cal.Rptr. 325 (1965).

“ The Court discussed only that aspect of double jeopardy which pro-

tects a defendant from a “second trial” and held that since the accused

had himself appealed his conviction and sought a new trial, he was

not entitled to. invoke the double jeopardy provision of the Constitu--

tion. 251 US. at 18, 40 S.Ct. 50.

ema»

Ss

SNe SP RRSP EE UN SOTO EEL

e:

32-A

not entitle a defendant who successfully attacks his conviction |

to absolute immunity from reprosecution.?”

It is clear, therefore, that the Court was concerned in Green

only with that aspect of double jeopardy which prohibits mul-

tiple prosecutions for the same offense, and was not faced with

the precise question that is before us—whether a harsher pun-

ishment following retrial for the same offense is prohibited by

the double jeopardy clause. ae )

Patton analogizes his situation to that in Green asserting

that as Green was “impliedly acquitted” of*the greater degree

of murder when he was convicted of the lesser degree of that

offense, similarly, Patton was “acquitted” of any higher pen-

alty when he was sentenced to twenty years’ imprisonment.

And as the accused.in Green was protected by the double jeo-

pardy clause from retrial for first degree murder, by a parity

of reasoning, Patton contends that the double jeopardy clause

‘ protects him from being “retried” for the penalty of which he ©

had been “acquitted” at his first trial, namely, anything be-

tween the twenty years he actually received and the statutory

maximum. On retrial, he asserts, he could only be given “up

to the degree of punishment of which he was originally con-

victed.”28

Defendant recognizes, and we agree, that to maintain that

he was “acquitted” at the first trial of any penalty greater than.

twenty years, is as much a fiction as that he has “waived” the

benefit of his initial sentence by appealing his conviction.?®

For this reason, we do not rest solely on the “implied acquit-

tal” doctrine; preferring to emphasize a somewhat different

aspect of double jeopardy—the prohibition against multiple

punishment: See Ex. parte Lange, 85 U. S. (18 Wall) 163, 21

L. Ed. 872 (1873).2° It is this aspect which has been consist-

"See, e.g., Bryan v. United States, 338. U.S. 552, 70 S.Ct. 317, 94 L.Ed.

335 (1950); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L-Ed.

300 (1896). ,

Van Alstyne, op. cit. supra, note 17, at 635. See Whaley ‘vy. North

Carolina, 379 F.2d 221 (decided this day). :

*See Part II, supra.

“If there is anything.settled in the jurisprudence of England and

America, it is that no man can be twice lawfully punished for the same

33-A -

ently relied upon to prohibit an increase in a defendant’s sen-

tence, once service has commenced. E.g., Ex parte Lange, su-

pra; United States v. Benz, 282 U. S. 304, 307, 51 S. Ct. 113,75

L. Ed. 354 (1931); United States v. Sacco, 367 F. 2d 368 (2d

Cir. 1966); United States v. Adams,- 362 F. 2d 210 (6th Cir.

1966) ; Kennedy v. United States, 330 F. 2d 26 (9th Cir. 1964).

We perceive no constitutionally significant distinction be-

tween the increases prohibited in the cases cited above and an

‘increase in punishment following retrial. - Thus, unless a de-

fendant is held to waive this double jeopardy protection in

seeking a new trial, a harsher penalty may not be imposed. *

And we have already declared, in Part II of this opinion, that

we decline to predicate a prisoner’s exercise of his right to seek

a new trial on the fiction that he has “waived” the benefits of

‘his initial sentence, because of the restrictive effect this has

on access to post-conviction remedies.3! This isin accord with

this circuit’s decision in United States v. Walker, 346 F. 2d 428

(4th Cir. 1965), that, in seeking correction of an erroneous sen-

tence,*? a defendant does not waive his double jeopardy right

offence. And * * * there has never been any doubt of * * * [this

rule’s} entire and complete protection of the party when a second

punishment is proposed jn the same court, on -the same facts, for the.

same statutory offence. ~

[T]he Constitution was designed as much to prevent the criminal from

being twice punished for the same offence as being twice tried for it.”

85 U.S. at 168, 173, 21 L.Ed. 872. (Emphasis supplied.)

That the framers were concerned with multiple punishment is idi--

cated by the text of the double jeopardy provision initially proposed

by Madison, cited in Green v. United States, 355 U.S. 184, 201-202, 78

S.Ct. 221, 231 (1957) (dissenting opinion of Frankfurter, J.): “No

person shall be subject, except in cases of impeachment, to more than

one ~ eee or_one trial for the same offence * * *.”- (Emphasis:

supplied.) .

"The primary focus of the iene opinion in Green was not on

protecting the accused from reprosecution per se, but on protecting -

his access to post-conviction remedies. See United States v. Ewell, 383

U.S. 116, 127-128, 86 S.Ct. 773, 780, 15, L.Ed.2d 27 (1966) (dissenting

opinion of Fortas, J.)

“Although the decision in Green was premised upon the Double

Jeopardy Clause, its teaching has another dimension. Green also dem- .

onstrates this Court’s concern to protect the right of appeal in criminal

cases.” -.

See also Van Alstyne, op. cit. supra, note 17; at 632.

"See Note, 80 Harv.L.Rev. 891, 896-97 (1967), where this concept

was developed with specific reference to the District Court’s decision

_in the present case.

34-A

not to be ‘cabtestia to multiple punishrhent. See Walsh v.

United States, 374 F.2d 421, 426° (9th Cir. 1967) and Ekberg

v. United States, 167 F. 2d 380, “388 (1st Cir. 1948), discussed

__ More extensively in Whaley v. North Carolina, 4 Cir., 379 F.

~ 2d 221 (decided this day).

To summarize, we conclude’ that increasing Patton’s pun-

_ishment after the reversal of his initial conviction constitutes .

_ a violation of his Fourteenth Amendment rights in that it ex-_

acted an unconstitutional condition to the exercise of his right

to a fair trial, arbitrarily denied him the equal protection of

the law, and placed him twice in Jeopardy. of punishment for .

the same offense.

“ We affirm the District Court’ s order to release the defend-

ant from confinement unless he is constitutionally resentenced

by the state court to a term not exceeding 20 years. from the

_ date of his original sentence, passed on October 26, 1960, with

full credit for the time: already served. 83

. Affirmed.

“Consequently, having now served nearly 7 years of his 20 year sen-

tence, Patton is presently eligible to be considered for parole. See N.C.

Gen.Stat. § 148-58 (Replacement yol. 1964), which provides that a

_ prisoner shall be eligible for parole after serving a fourth of a deter-

minate sentence.

35-A -

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4

a

No. 11,266 |

| “Filled

| Oct. 5, 1967

Maurice -‘S. Dean

a ae } | ; Clerk

: LEE SHEAR, ;

_ Appellant, "

- ‘versus

OTTO C. BOLES, Warden of.

The .West “Virginia State Penitentiary,

, | . Appellee.

® ke:

a % aia

APPEAL FROM THE UNITED States" District CouRT FOR THE

; NORTHERN DIstTRICT OF WEsT VIRGINIA, AT ELKINS.

MEMORANDUM DECISION

. ‘ ‘ ‘

+ Lee Shear, a West Virginia prisoner, appeals from an order

of the District Court (Maxwell, J.) denying his petition for

habeas corpus. The District Court granted Shear a certificate

of probable cause to appeal. ~ |

In 1964 Shear pleaded guilty to two felony charges and

was sentenced to concurrent ten-year terms. Later that year

the District Court, in a habeas. corpus proceeding, found

these convictions invalid and ordered Shear released or re-

‘tried. The state:chose to reprosecute Shear and in separate

trials he was reconvicted of both chatges by juries. This time,

however, his punishment was fixed by the court at two

consecutive fifteen-year sentences. In his petition in the Dis-

trict Court, Shear complained that this increased sentence

after retrial was unconstitutional.

—_

Pe

omerneeneenneng? f

SOOT ATED LRP LY AR COE SORIA rT ICTR Dene

36-A

The District Court rejected Shear’s argument.! However,

since the date of the District Court’s opinion, this Court has

held it to be a violation of constitutional guarantees to in-

crease punishment on a retrial, Patton v. North Carolina,

_. F.2d _., No. 11,005 (4th Cir.), rehéaring en banc denied,

Sept. 5, 1967. We feel it appropriate, therefore, to remand

the present ‘case to the District Court for its consideration °

in the light of Patton? — | °

A true copy,

» Teste:

Maurice S. Dean, Clerk,

U. S. Court of Appeals for the

Fourth Circuit.

By Margaret M. Walton,

Deputy Clerk.

The judgment of the District Court is reversed and the

case is remanded for further proceedings consistent with this

opinion.

CLemenT F. Haynswortn, JR.

Chief Judge, Fourth Circuit _

Srmmon E. SoBELOFF

° United States Circuit Judge .

/s/ Joun D. BuTZNeER, JR.

a - United States Circuit Judge

«

1263 F.Supp. 855 (N.D. W.Va. 1967).

*The District Court also declined to consider Shear’s claim based on

Escobedo v. Illinois, 378 U.S. 478 (1964), on the ground that Shear

had not exhausted his state remedies. Our review of the record-indi- .

cates that while the admissibility of Shear’s confession was presented

at least at one of the retrials, Shear did not appeal the convictions .

and has not raised the issue by way of available state post-conviction

remedies. Thus, the District Court’s ruling that Shear has not exhausted.

his state remedies with this issue appears correct. ear did present

his increased punishment claim to the West Vifginia Supreme Court

of Appeals in an unsuccessful habeas corpus petition.

<-

37-A

APPENDIX C

ORDERS BELOW

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

AT WHEELING

Civil .Action

' File No. 1389-W

° : Habeas Corpus.

. LEE SHEAR, )

j , Petitioner,

vs.

OTTO C. BOLES, Warden of the

West Virginia State Penitentiary,

Respondent.

-ORDER OF RELEASE

Upon the findings and conclusions and for the reasons

stated into the record, the convictions of the petitioner by —

the Intermediate-Court-of-Ohio County, West “Virginia, and.

the sentences anid commitments dated February 14, 1964, are ”

set aside and declared void. The petitioner shall be released

from his present. confinement thereunder. . |

This order of releasé is without prejudice to the right of

the State to rearrest and retry the petitioner upon the in-*

dictments or for the offenses with which he was charged,

and execution of this order of release shall be stayed for 4

period of 10 days from and after this date, to permit the

State to initiate such proceedings. Any such proceedings shall

- be promptly conducted to accord the petitioner a speedy re-

trial, and this court retains jurisdiction ‘of tHis cause to

entertain any motion or to make any further order which the

ends of justice may require.

- Upon application of the petitioner, during the period of

Stay, petitioner may be admitted to bail for the balance of |

_ Said period upon furnishing bond, with approvevd security,

in the amount of $2,500.00. ;

erating’:

“CARAT I Compe angen

omy

OYE er Ore Te

AON ARR TUR CON DCR EE Ie ene

~ .

88-A

This order shall be served upon the respondent and copies

thereof, by mail, upon the Attorney General of the State of

West Virginia, the petitioner, and his counsel.

ENTER: September 22, 1964

‘CHARLES L. PAuL

United States District Judge

I hereby certify that the annexed ,

instrument is a true and correct copy

of the ofiginal on file in my office.

Attest: J.C. Strickling

Clerk, U. S. District. Court

Northern District of West Virginia

&

Fd

By: Ray D. Sommerville

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

LEE SHEAR, Petitioner, "

vs.

Civil Action File No. 570-E

HABEAS CORPUS

OTTO C. BOLES, Warden of the

West Virginia State Penitentiary, .

Respondent. | .

U. S. District Court .

Filed at Elkins, W. Va.

February 6, 1967

Thomas F. Stafford

Clerk ~

ORDER

The Court, having considered the above petition rue a writ

-of habeas corpus, is of the opinion that, for reasons stated in

a written Memorandum now ORDERED filed, the Petitioner

is not entitled to the relief sought in said petition.

—

:

”

89-4

It is accordingly ORDERED that the petition earlier filed

bé, and the same is hereby, dismissed. ay

If the petitioner desires to appeal the decision of this Court,

notice of appeal ‘must be received by ‘the Clerk of this Court

within thirty. (30) days from the date of entry of this. order.

A copy of the notice of appeal must be mailed to the Attorney >

- General of West Virginia, attorney for the Respondent.

-Enter: Feb. 6, 1967 hs

Ropert E. MAXweELui

United States District Judge

UNITED STATES COURT OF APPEALS

‘FOR THE FOURTH- CIRCUIT

No. 11,266

- LEE SHEAR,

_ Appellant,

*-VS.

- OTTO C. BOLES, Warden of the

' West Virginia State Penitentiary,

hie _ Appellee.

, APPEAL FROM THE UNITED States District @ouRT FOR ‘THE

NorTHERN District or WEsT VIRGINIA, AT ELKINS

_ Upon consideration of the petition of the appellee, by his

counsel, and for cause shown, ° ’:

“It is ordered that the memorandum decision of this Court

_ issued on October 5, 1967, be, and it is hereby, recalled and the

Clerk of the District Court is hereby directed to return the

' memorandum decision forthwith to the Clerk of this Court.

Further ordered that the memorandum decision be, and it

is hereby, stayed pending application of the appellee in the

Supreme Court of the United States for a writ of certiorari to

we.

a)

F 5

ETP PR ERE RN AON SA a RRR ge™ :

.

.

-

Ol OR OLIN ES PEGE SOY IREILL LOE MLE LET

a

40-A

this Court, provided the application for a writ of certiorari is

filed in the Supreme Court of the United States within the

time prescribed by law. . . ob

>»

_ FIL ED

Oct, 26, 1967

Maurice S. DEAN © eer

CLERK ae . é 2

on pes Joun D. Burzner, Jr.

aneras States. Circuit Judge.

A true copy

Teste:

Maurice S. Dean, Clerk,

U. S. Court of + for the Fourth Circuit.