Petition for Writ of Certiorari — Rivera v. Sheriff

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Supreme Court, U.S.

ee” 2.

981776 Apr 301999)

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

EDWARDO RIVERA,

Petitioner,

vs.

SHERIFF OF COOK COUNTY, ILLINOIS,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

FREDERICK F. COHN

601 S. LaSalle St.

Chicago, Illinois 60605

(312) 641-0692

Attorney for Petitioner

(la) QUESTIONS PRESENTED

1. Where defendant is found guilty

in a bench trial, where the sole

evidence against defendant is a single

identification by one stranger of

another, and where in response to a

motion for new trial, the trial judge

finds he has doubt as to the propriety

of his decision that there was

sufficient evidence to convict beyond a

reasonable doubt, stating:

"This being a single witness

identification case in essence the

law is [that] a single witness must

convince the trier of fact beyond a

reasonable doubt of that

identification. Next going over

the transcripts and listening to

arguments the Court is of the

Opinion that the Court could have

made a mistake in this case. And

this being a murder case I am not

going to take the chance of my

mistake leading this man to be

wrongfully convicted. I am going

to grant his motion for me to

reconsider. I will vacate the

finding of guilt, reinstate his

plea of not guilty." (App. A, pp.

1-2),

(A) Is his expression of doubt such

that a retrial violates the Double

Jeopardy provision of the 5th Amendment

to the U.S. Constitution?

(B) Is the 7th Circuit’s holding

that the trial court’s ruling does not

amount to an acquittal for double

jeopardy purposes, in conflict with this

Court’s holdings as to the definition of

an "acquittal" in such decisions as

Hudson v. Louisiana, 450 U.S. 40 (1982);

Smalis v. Pennsylvania, 476 U.S. 140

(1986); Justices of Boston Municipal

Court v. Lydon, 466 U.S. 294 (1984);

United States v. Scott, 437 U.S. 82

(1978); Sanabria v. United States, 437

U.S. 54 (1978); Burks v. United States,

ee Oe ee Ss? ,

iii

437 U.S. 1 (1978); it Vv.

Martin Linen Supply Co., 430 U.S. 564

(1977); and United States v. Sisson, 399

U.S. 267 (1970)?

2. Is the issue - whether a grant

of a new trial, by a judge Bitting as a

trier of fact, based upon his belief

that he may be wrong as to whether the

State proved defendant guilty beyond a

reasonable doubt, is an acquittal for

double jeopardy purposes - a matter of

federal constitutional law that must be

decided by a federal court on a de novo

standard?

(1b) Parties Involved

Petitioner, Edwardo Rivera, was

Petitioner in the U.S. District Court,

N.D. Ill., E.D., and Appellee in the

U.S. Court of Appeals for the 7th

Circuis.

Respondent, Sheriff of Cook County,

Illinois, was Respondent in the District

Court and Appellant in the 7th Circuit.

(le) TABLE OF CONTENTS

PAGE

Questions Pregented.................... i

TREC AOe SR ghiee koxsin wee oe iv

Table of Contents.......... ee ee Vv

POmteR OE MOURA CIO ix

Prayer for Certiorari.......... die mar ane 1

Judgment and Ordera Below.............. 2

Jurisdictional Statement............... 3

Constitutional Provision Involved...... 3

Statement of the Cage. ... ..<<cccc. cn, 3

Statement of Pacts......... Ee ee 4

Reasons for Granting Certiorari...... Pp h

1. Where defendant is found guilty

in a bench trial, where the sole

evidence against defendant is a single

identification by one stranger of

another, and where in response to a

motion for new trial, the trial judge

finds he has doubt as to the propriety

of his decision that there was

sufficient evidence to convict beyond a

reasonable doubt, stating:

"This being a single witness

identification case in essence the

law is [that] a single witness must

convince the trier of fact beyond a

reasonable doubt of that

identification. Next going over

the transcripts and listening to

arguments the Court is of the

opinion that the Court could have

made a mistake in this case. And

this being a murder case I am not

going to take the chance of my

mistake leading this man to be

wrongfully convicted. I am going

to grant his motion for me to

reconsider. I will vacate the

finding of guilt, reinstate his

plea of not guilty." (App. A, pp.

1-2) ‘

(A) The trial judge’s expression of

doubt is such that a retrial violates

the Double Jeopardy provision of the Sth

Amendment to the U.S. Constitution....13

(B) The 7th Circuit’s holding that

the trial court’s ruling does not amount

to an acquittal for double jeopardy

purposes, conflicts with this Court’s

holdings as to the definition of an

"acquittal" in such decisions as Hudson

v. Louisiana, 450 U.S. 40 (1982); Smalis

v. Pennsylvania, 476 U.S. 140 (1986);

Justices of Boston Municipal Court v.

Lydon, 466 U.S. 294 (1984); United

States v. Scott, 437 U.S. 82 (1978);

Sanabria v. United States, 437 U.S. 54

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

1 (1978); United States v. Martin Linen

vii

Supply Co., 430 U.S. 564 (1977); United

,» 299 U.S. 267

2. The issue - whether a grant of a

new trial, by a judge sitting as a trier

of fact, based upon his belief that he

may be wrong as to whether the State

proved defendant guilty beyond a

reasonable doubt, is an acquittal for

double jeopardy purposes - is a matter

of federal constitutional law that must

be decided by a federal court on a de

re Se ee ee le aay a oOo oe Dee 22

GRRL a a, od ae bee 0 wo o's 6 0 oe wh eens 26

Appendices:

App. A = Opinion of a panel of the U.S.

Court of Appeals for the

Seventh Circuit, No. 98-1703,

decided December 3,

ROP ct mes tseueegewececss App. 1

[Note: The majority opinion,

at App. 1-7, by Circuit Judge

Easterbrook, is joined by

Circuit Judge Ripple. There

is a separate concurring

opinion by Circuit Judge

Cudahy, at App. 7-9.]

App. B = Order denying petition for

rehearing and petition for

rehearing en banc, dated

February 1, 1999........ App. 10

Viii

App. C = Revised Memorandum Opinion of

the U.S. District Court, No. 97

C 3581, issued February 17,

BORG, sida cues wendacsec ue. 22

}

1(c) TABLE OF AUTHORITIES

Page

Cases

d P

437 U.S. 1 (1978) 12, 19

H ‘ i z

450 U.S. 40 (1982) 24). 48:26

usti icipal

Lydon, 466 U.S. 294 (1984) 12, 19

Miller v. Fenton, 474 U.S. 104 (1985) 24

fe) ,

517 U.S. 690 (1996) 24-25

Sanabria v. United States,

437 U.S. 54 (1978) pS et

Vv. ia,

476 U.S. 140 (1986) $249; 24

Swisher v. Brady, 438 U.S. 204,

226 (1978) (dissent) 19

Thompson v. Keohane,

516 U.S. 99 (1995) 24, 25

Tibbs v. Florida, 457 U.S. 31 (1982) 14

420 U.S. 358 (1975) 21

Vv.

., 430 U.S. 564

(1977) 12, 15-16, 19

rahe

, 974 F.2d

1355 (D.C. Cir. 1992) 15

437 U.S. 82 (1978) a2, 15, i9

‘

399 U.S. 267 (1970) a2, 19, 20

n j P

497 U.S. 639 (1990) 15

U.S. Const., 4th Amendment 24

U.S. Const., 5th Amendment,

Double Jeopardy Clause passim

Statutes and Rules

28 U.S.C. § 1254(1) 2

28 U.S.C. § 2254 2

Supreme Court Rules 10, 12, 13 2

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Edwardo Rivera,

(hereafter, petitioner, or defendant),

prays that a writ of certiorari issue to

review the judgment of the Court of

Appeals for the 7th Circuit, reversing

the judgment of the United States

District Court for the Northern District

of Illinois, Eastern Division, which had

granted his petition for writ of habeas

corpus.

Judgment and Order Below

The Judgment sought to be reviewed

is the Opinion of the 7th Circuit

decided December 3, 1998 (App. A),

reported at 162 F.3d 486, reversing the

judgment of the U.S. District Court,

N.D. Ill. E.D. (App. C), which had

granted habeas relief.

Jurisdictional Statement

On December 3, 1998, the Court of

Appeals issued its Order (App. A)

reversing the District Court’s judgment

(App. C) which had granted habeas

relief. Petition for rehearing and

suggestion for rehearing en banc was

denied February 1, 1999. (App. B)

This Petition for Certiorari is

timely filed within 90 days thereafter.

Jurisdiction is invoked under 28

U.S.C. § 1254(1) and Rules 10, 12 and 13

of this Court.

The basis for federal jurisdiction

in the court of first instance - the

District Court - is 28 U.S.C. § 2254(a).

_—eOowo

Constitutional Provision

The constitutional provision

involved is the Double Jeopardy Clause

of the Sth Amendment to the U.S.

Constitution.

STATEMENT OF THE CASE

After petitioner was convicted of

murder in a bench trial, in a single-

witnesa identification case, the court

vacated the conviction and set the

matter for trial before a different

judge. (See App. A, pp. App 1-2; App. C,

p. App. 18) After his motion for double

jeopardy discharge was denied, the

Illinois Appellate Court affirmed and

the Illinois Supreme Court denied

petition for leave to appeal (App. C, Pp.

App. 19), petitioner sought a writ of

habeas corpus in the U.S. District

Court, seeking to bar retrial based on

the Double Jeopardy Clause of the Sth

Amendment to the U.S. Constitution. The

District Court granted habeas (App. C),

and the 7th Circuit reversed (App. A)

and denied rehearing in banc. (App. B)

Statement of Pacts*

On March 30, 1993, Weydowing

LaPorte, Jacqueline Vicario and Samuel

Ponte were driving home from a movie

around midnight when a car pulled up

behind them and shone bright lights into

their car. The second car then pulled

alongside them, and a man with a

* These facts are set out

verbatim, directly from the District

Court’s Revised Memorandum Opinion

granting habeas relief - except for the

indicated omission, at pp. 10-11,

infra, from p. App. 19, of a single

footnote (re bond). (App. C, pp. App.

12-19)

mustache and goatee fired gun shots into

their car, killing LaPorte. One month

later, petitioner was arrested and

charged with the crime. Petitioner was

tried before a judge rather than a jury,

The main evidence presented against him

was the testimony of Jacqueline Vicario.

At trial, petitioner’s attorney

elicited testimony from Vicario that

indicated the bright light adversely

affected her vision during the crime.

About 35 days after the crime, Vicario

viewed a photographic spread and, that

evening, she was shown a line-up. Tr.,

38-39. Her testimony also implied that

the line-up procedures were suggestive.

For example, Vicario identified

petitioner out of a line-up in which he

was the sole person with a mustache and

goatee,

Q: And in fact none of the other

men in the line up had a goatee,

did they?

A: No they didn’t.

Q: Huh?

A: No they didn’t.

Q: So you were only shown one

picture of one man in a line up who

had a goatee, correct?

A: Yes.

Transcript of the Proceedings, Oct. 5,

1994 (Tr.), 39. Vicario also stated

that she only picked petitioner out of

the line-up after having seen his

photograph and having been told that

that very person would be in the line-

up.

Q: [The police officer] told you

that the person whose picture you

picket out you were going to see in

the pine up?

A: Yes.

Q: And he told you that your job at

the line up was to see if the

person whose picture you were on

was on fact in the line up?

A: Yes.

Q: And so you went to the line up

and you said to the police officer,

‘the man whose picture I picked out

I now see him in the line up, ’

correct?

A: Yes.

Tr., 38-39. Vicario also admitted at

trial that she told private detectives

-- who she thought were police officers

-- that she was unsure about the

identification she had made.

Q: Well did they, let me ask you

this question: Let me ask you what,

were these questions put to you and

did you give these answers.

Question: ‘If you were sworn

under oath in a Court of law

before a judge or jury and

they said is this the man who

shot [the victim] in front of

you, could you positively say

it was or absolutely gay it as

him?‘

Answer: ‘No.’

‘Are you sure?’

Answer: ‘Yes.’

Question: ’No way?’

Answer: ‘No.’

Were those questions and answers

put to you?

A: Yes.

Q.So you told them that you weren’t

sure, correct?

A: Yes.

Q: You thought [the detectives]

were from the police right?

A: Yes.

Q: So you told people who you

thought were, in your opinion, part

of the Chicago police that you were

not sure about your identification,

correct?

A: Yes.

Q: And you told people who you

believed that you were doubtful

about your ability to make an

Se rf.

LO ie OR ee TR MOT MR AE OT.

identification?

A: Yes.

Tr. at 49.

The other witness in the car stated

that the petitioner resembled the

assailant, but only offered a tentative

identification. See Respondent’s Ex. H,

at S. Petitioner testified that he did

not commit the crime. On November 10,

1995, the trial judge found petitioner

guilty of murder, attempted murder and

aggravated discharge of a firearm. He

permitted petitioner to remain free on

bond until sentencing.

Petitioner filed a motion for a new

trial, arguing that Vicario’s

identification was insufficient evidence

on which to convict him. On January 13,

1995S, after hearing oral arguments, the

trial judge granted the motion for a new

trial.

The Court: This being a single

witness identification case in

essence the law is a single witness

must convince the trier of fact

beyond a reasonable doubt of that

identification.

Next going over the transcripts and

listening to arguments the Court is

of the opinion that the Court could

have made a mistake in this case.

And this being a murder case I am

not going to take the chance of my

mistake leading this man to be

wrongfully convicted.

I am going to grant his motion for

me to reconsider. I will vacate

the finding of guilt, reinstate his

plea of not guilty. And I am going

to order that he be back here to

stand trial before another Judge in

this courtroom on February 6th.

Transcript of the Proceedings, Jan. 13,

1995, 6-7. Petitioner filed a motion

for double jeopardy discharge before the

new judge, but the motion was denied.

Remaining free on bond [footnote

omitted), petitioner appealed that

decision. The Illinois Appellate Court

affirmed the judgment, and the Illinois

Supreme Court denied a Petition for

Leave to Appeal.

REASONS FOR GRANTING CERTIORARI

1. Where defendant is found guilty

in a bench trial, where the sole

evidence against defendant is a single

identification by one stranger of

another, and where in response to a

motion for new trial, the trial judge

finds he hae doubt as to the propriety

of hia decision that there was

sufficient evidence to convict beyond a

reasonable doubt, stating:

"This being a single witness

identification case in essence the

law is [that] a single witness must

convince the trier of fact beyond a

reasonable doubt of that

identification. Next going over

the transcripts and listening to

arguments the Court is of the

opinion that the Court could have

made a mistake in this case. And

this being a murder case I am not

going to take the chance of my

mistake leading this man to be

wrongfully convicted. I am going

to grant his motion for me to

——_

iii aaa

reconsider. I will vacate the

finding of guilt, reinstate his

plea of not guilty." (App. A, pp.

1-2),

(A) The trial judge’s expression of

doubt is such that a retrial violates

the Double Jeopardy provision of the Sth

Amendment to the U.S. Constitution; and

(B) The 7th Circuit’s holding that

the trial court’s ruling does not amount

to an acquittal for double jeopardy

purposes, conflicts with this Court’s

holdings as to the definition of an

"acquittal" in such decisions as Hudson

v. Louisiana, 450 U.S. 40 (1982); Smalis

vy. Pennsylvania, 476 U.S. 140 (1986) ;

J B 1

Lydon, 466 U.S. 294 (1984); United

States v. Scott, 437 U.S. 82 (1978);

Sanabria v. United States, 437 U.S. 54

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

1 (1978); United States vy. Martin Linen

Supply Co., 430 U.S. 564 (1977); United

States v. Sisson, 399 U.S. 267 (1970).

2. The issue - whether a grant of a

new trial, by a judge sitting as a trier

of fact, based upon his belief that he

may be wrong as to whether the State

proved defendant guilty beyond a

reasonable doubt, is an acquittal for

double jeopardy purposes - is a matter

ef federal constitutional law that must

be decided by a federal court on a de

novo standard.

Dan nana a nea aaa a ae

- a a

1. Under the circumstances here:

A. The trial judge's expression of

doubt renders his action an acquittal

for double jeopardy purposes, such that

retrial is barred by the 5th Amendment

Double Jeopardy Clause.

Here, the sole issue before the

trial court, at the trial and at the

motion for new trial, was whether the

single eyewitness testimony waa

sufficient to overcome the presumption

of innocence - and in his ~- the Judge’s,

mind, prove defendant guilty beyond a

reasonable doubt. There were no

procedural errors upon which he could

have granted a new trial. When he

granted a new trial because he was not

sure if the evidence proved defendant

guilty beyond a reasonable doubt - "I am

not going to take the chance of my

mistake leading this man to be

wrongfully convicted" - the result must

be an acquittal and a bar to further

trial. Hudson v. Louisiana, 450 U.S. 40

(1982).

This is not a situation where,

after a jury trial, a judge grants a new

trial, Tibbs v. Florida, 457 U.S. 31

(1982), upon belief that errors

occurred, or where a new trial is

granted in a manner similar to when a

reviewing court grants a new trial.

Here, where the judge is the sole

arbiter of whether there is a reasonable

doubt - and he has doubt - this is an

acquittal barring re-trial. As stated

by the District Court:

"The trial judge in this case

had a legal obligation to deny the

new trial motion (which was based

on the sufficiency of the evidence)

ae ae

ei etl Sie Sw Leilene. eae aL Aa ED prec niateedimmonmate a: Lasreshs SOM IER piper eterno

de.

and sustain the conviction if he

was convinced beyond a reasonable

doubt of petitioner’s guilt. See

©&.g., United States v. Pierre, 974

F.2d 1355, 1357 (D.C. Cir. 1992)

(holding that jury was properly

instructed that it has a duty to

convict if convinced beyond a

reasonable doubt of defendant’s

guilt, and stating that such

instruction was legally accurate).

We presume that he knew the law and

applied it in making his ruling.

See Walton v. Arizona, 497 U.S.

639, 653 (1990). The irresistible

inference, therefore, is that by

reconsidering the finding of guilt,

vacating the conviction and

ordering a new trial, the trial

judge acquitted petitioner.

This conclusion is consistent

with the Supreme Court’s definition

of an acquittal - a precedent the

Illinois Appellate Court

disregarded entirely. . .. [for

citations and omitted material, see

Point 1(B), infra.] An acquittal

occurs when ‘the ruling of the

judge, whatever its label, actually

represents a resolution [in the

defendant’s favor], correct or not,

of some or all of the factual

elements of the offense charged. ’

(United States v.] Scott, 437 U.S.

[82] at 97 [(1978)] (quoting

(United States v.] Martin Linen

[Supply Co.], 430 U.S. [564] at 571

{[(1977)]. This definition focuses

on a resolution of factual issues,

not on grounds unrelated to guilt

or innocence. [qd. [Scott] at 98 &

n.11 (commenting that a prejudicial

pretrial delay does not relate to

guilt or innocence, but

hypothesizing that the insanity

defense does). [fn. omitted) Here

on the motion for a new trial, the

issue before the trial judge (and

fact-finder) was petitioner’s guilt

or innocence. In particular, the

question was whether the eyewitness

identification could establish

petitioner’s guilt beyond a

reasonable doubt. In ruling on the

motion, the trial judge resolved

the issue in petitioner’s favor."

(App. C, pp. App. 34-37)

When the factfinder - a judge -

expresses that he is not convinced

beyond a reasonable doubt - he must

acquit. He is required to by the

presumption of innocence. He can’t

state - I am not convinced - but I shall

grant the State another opportunity and

grant a new trial so the State can start

over again. This would violate double

jeopardy.

The same situation exists here.

Permitting re-trial would violate the

very purpose of the Double Jeopardy

Clause.

The 7th Circuit reversed the

District Court for different reasons.

Judge Cudahy, in a concurring opinion,

concluded that where a bench trial ia

had, granting a new trial because the

judge is not convinced beyond a

reasonable doubt "does not mean no

reasonable factfinder could have been

convinced beyond a reasonable doubt of

Rivera’s guilt." (App. A, p. App. 9)

This position is, of course, wrong, and

this Court should grant certiorari to

resolve the crucial issue whether, where

uncertainty exists in the mind of the

trial judge as to the sufficiency of the

evidence in a bench trial to prove

defendant’s guilt beyond a reasonable

doubt, a new trial and not an acquittal

can be granted - a result that is

contrary to the purposes of the Double

Jeopardy Clause.

Certiorari should be allowed to

resolve the question whether the trial

judge’s expressions of doubt, in this

context, amount to an acquittal for

double jeopardy purposes, barring re-

trial.

B. The 7th Circuit’s holding that

the trial court’s ruling does not amount

to an acquittal for double jeopardy

purposes, conflicts with this Court’s

holdings as to the definition of an

“acquittal” [cases as set out in the

caption, 1(B), p. 12, supra).

As the District Court observed:

"This conclusion [that retrial

here would violate the Double

Jeopardy Clause) is consistent with

the Supreme Court’s definition of

an acquittal - a precedent the

Illinois Appellate Court

disregarded entirely. See Smalis,

476 U.S. at 144 &n.6; Justices of

466 U.S. 294, 309 (1984);

v. Brady, 438 U.S. 204, 226 (1978)

(dissent); United States v. Scott,

437 U.S. 82, 97 (1978); Sanabria v.

’

e , 437 0.8. 34, TI

(1978); Burks, 437 U.S. at 10;

United States v. Martin Linen

Supply Co,, 430 U.S. 564, 571

(1977); see also Sisson, 399 U.S.

at 290. An acquittal occurs when

‘the ruling of the judge, whatever

its label, actually represents a

resolution [in the defendant’s

favor], correct or not, of some or

all of the factual elements of the

offense charged.’ Scott, 437 U.S.

at 97 (quoting Martin Linen, 430

U.S. at 571)." (App. C, pp. App.

35-36)

The 7th Circuit’s opinion (App. A)

conflicts with this Court’s decisions

relied on by the District Court (App. Cc,

pp. App. 31-33 & 35-36), holding it is

what a court does, not necessarily what

it says, that governs the interpretation

of an order, and that the reviewing

court’s duty is to analyze the substance

of the court’s ruling, not the label

attached to it. For example:

In Hudgon v. Lovisiana, 450 U.S. 40

(1982) (App. C, p. App. 31), this Court

held that an order granting a motion for

new trial entered upon the trial court’‘s

finding that the evidence was legally

insufficient to sustain the jury‘s

verdict, was tantamount to an acquittal

and barred retrial on double jeopardy

grounds - even though the trial court

had ordered a new trial.

In United States v. Sisson, 399

U.S. 267, 290 (1970), in concluding that

an order of "arrest of judgment"

following a conviction was actually, in

context, an acquittal, this Court held

2. aa)

that th ° t

of hip own action cannot control the

Cc if i

Accord: Smalis v. Pennsylvania, 476

U.S. 140, 144 (1986) (grant of demurrer

fat close of bench trial, on grounds of

insufficient evidence] was actually an

acquittal). See also United States v.

Jenkins, 420 U.S. 358 (1975), where this

Court extended double jeopardy

principles, from the usual context of

jury trials, to the (then) infrequent

context of bench trials.’

2 In Jenkins, where after trial

(for knowingly refusing to submit to

induction in the armed forces), the

trial court had ordered the indictment

dismissed and defendant discharged, and

it was not clear to this Court that the

trial court found against the defendant

on all the issues necessary to establish

guilt, id. at 367-68, and there was an

absence of finding as to the essential

statutory element of "knowledge," jbid.,

It is thus abundantly clear, that

it is what a court does, not what it

says, that governs whether a given

action is or is not an acquittal for

double jeopardy purposes.

Certiorari should be allowed

because the 7th Circuit opinion (App.

A), reversing the District Court’s grant

of habeas here (App. C), conflicts with

the foregoing Supreme Court precedent as

to what constitutes an acquittal.

2. The issue - whether a grant of a

new trial, by a judge sitting as a trier

of fact, based upon his belief that he

may be wrong as to whether the State

proved defendant guilty beyond a

reasonable doubt, is an acquittal for

double jeopardy purposes - is a matter

of federal constitutional law that must

be decided by a federal court on a de

novo standard.

this Court held that the prohibition

against double jeopardy precluded

retrial. Id. at 370.

The 7th Circuit improperly gave

controlling deference to the Illinois

courts’ determination that Judge

Strayhorn’s post-trial ruling was not an

acquittal. (App. A, pp. App. 5-6) The

7th Circuit improperly characterized the

bottom-line determination - that is,

whether Judge Strayhorn’s ruling was or

was not an acquittal - as a question of

fact, or a question of State law (App.

A, p. App. 5); in either event, the 7th

Circuit held it was a matter as to which

“a federal court may not reach an

independent conclusion on the subject,

but must respect the state courts’

resolution" (App. A, p. App. 5) on

habeas review. In this position, the

7th Circuit is absolutely wrong.

Whether or not a given court order

is an "acquittal" within the meaning of

the federally guaranteed constitutional

provision prohibiting double jeopardy,

is a question of federal law. Since the

conclusion in question (whether Judge

Strayhorn’s ruling was [functionally

equivalent to) an acquittal) is a

conclusion of law, it is not entitled to

deference as a finding of fact would be.

Rather than being entitled to

deferential review, such a conclusion

must be subjected to de novo review.

E.g-, Thompson v,. Keghane, 516 U.S. 99

(1995S) (in habeas context, "custody" for

Miranda purposes requires de novo

review); Miller v. Fenton, 474 U.S. 104

(1985) (habeas context; de novo review

of voluntariness of confession); cf.

Ornelas v. United States, 517 U.S. 690

A | oe

(1996) (direct appeal; de novo review of

probable cause/reasonable suspicion for

4th Amendment purposes) .

For the same reasons this Court

articulated require de novo review in

these decisions, de novo review is also

required in the present context.

Utilizing uniform federal standards,

subject to de novo review, with respect

to whether a state court post-trial

ruling vacating a bench-trial finding of

guilt, is or is not an acquittal, is

necessary in order to uniformly

effectuate the federally guaranteed

constitutional right not to be subjected

to double jeopardy. (See Ornelas and

Thompson v. Keohane, both, supra, as to

reasons for requiring uniformity of

interpretation and application of

federally guaranteed rights.)

Certiorari should be allowed so

that this Court can determine whether in

the present context, federal standards

apply, and the habeas court must use a

standard of de novo, not deferential,

review.

CONCUUS ION

For the foregoing reasons,

certiorari should be allowed. And, on

the merits, thie Court should reverse

the judgment of the 7th Circuit and

reinstate the judgment of the District

Court, allowing habeas relief and

forever barring retrial.

Respectfully submitted,

FREDERICK F. COHN

Attorney for Petitioner

601 S. LaSalle St.

Chicago, IL 60605

312/641-0692

App. l l

APPENDIX C

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

86510 SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

February 3, 1999

Mr. Frederick F. Cohn

Attorney at Law

205 W. Wacker Dr., S#1515

Chicago, IIL 60606

No. 86510 - People State of Illinois,

respondent, v. Robert Patis,

petitioner. Leave to appeal,

Appellate Court, First

District

The Supreme Court today DENIED the

petition for leave to appeal in the

above entitled cause.

The mandate of this Court will issue to

the Appellate Court on February 25,

i999.

Printed on Recycled Paper

App. 12

APPENDIX D

(SEAL)

Supreme Court of Illinois

SUPREME COURT BUILDING

SPRINGFIELD 62701

JULEANN HORNYAK FIRST DISTRICT OFFICE

CLERK OF THE COURT 20TH FLOOR

(217) 782-2035 160 NO. LASALLE ST.

CHICAGO, 60601

(312) 793-1332

TELECOMMUNICATIONS TELECOMMU., -ATIONS

DEVICE FOR THE DEAF DEVICE FOR "HE DEAF

(217) 524-8132 (312) 7935-1333

February 23, 1999

Mr. Frederick F. Cohn

Attorney at Law

205 W. Wacker Dr., S#1515

Chicago, IL 60606

In re: People State of Illinois,

respondent, v. Robert

Patis, Petitioner.

No. 86510

The Supreme Court today entered the

following order in the captioned cause:

Motion by petitioner/appellant for

stay of mandate pending the filing

of a petition for writ of

certiorari in the United States

Supreme Court. Motion Allowed.

App. 13

A copy of the order is attached.

Very truly yours,

[signed] Juleann Hornyak

Clerk of the Supreme Court

cc: Hon. Jim Ryan

Hon. Richard A. Devine

App. 14

APPENDIX E

volv

The 14th Amendment to the U.S.

Constitution, § 1, provides, in

pertinent part:

"(Njor shall any State deprive

any person of life, liberty, or

property, without due process of

ROW? «ce 6”

Chapter 625, Illinois Compiled

Statutes [{ILCS], § 5/6-303(a), provides:

"5/6-303. Driving while driver's

license, permit or privilege to

operate a motor vehicle is

suspended or revoked.

(a) Any person who drives or is

in actual physical control of a

motor vehicle on any highway of

this State at a time when such

App. 15

person's driver's license, permit

or privilege to do so or the

privilege to obtain a driver's

license or permit is revoked or

Suspended as provided by this Code

or the law of another state, except

as may be specifically allowed by a

judicial driving permit, family

financial responsibility driving

permit, probationary license to

drive, or a restricted driving

permit issued pursuant to this Code

Or under the law of another state,

shall be guilty of a Class A

misdemeanor."

—

App. l

APPENDIX A

In the

Gnited States Court of Appeals

For the Seventh Circuit

No. 98-1703

EDWARDO RIVERA,

Petitioner-Appellee,

Vv,

SHERIFF OF COOK COUNTY,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of IMinois, Eastern Division.

No. 97 C 3581—John F. Grady, Judge.

ARGUED SEPTEMBER 28, 1998—DEcIDED DECEMBER 3, 1998

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit

Judges.

EASTERBROOK, Circuit Judge. At the conclusion of a

bench trial, the judge convicted Edwardo Rivera of

murder. Two months later, on the date set for sentencing,

Rivera’s lawyer asked the judge to hold a new trial,

contending that the eyewitness identification of Rivera as

the killer was uncorroborated and may have been influ-

enced by a suggestive photographic identification. After

hearing argument, Judge Strayhorn (of the Circuit Court

of Cook County) stated:

This being a single witness identification case in

essence the law is [that] a single witness must con-

vince the trier of fact beyond a reasonable doubt of

2 App. 2 No. 98-1703

that identification. Next going over the transcripts

and listening to arguments the Court is of the opinion

that the Court could have made a mistake in this

case. And this being a murder case I am no! going to

take the chance of my mistake leading this man to be

wrongfully convicted. I am going to grant his motion

for me to reconsider. I will vacate the finding of guilt,

reinstate his plea of not guilty. And I am going to

order that he be back here to stand trial before

another Judge in this courtroom on February [16,

1995). . . . [We will send it to some other Judge for

trial. I will not retry this case.

Ever since, the parties have been debating whether the

second trial Rivera sought and obtained would violate the

double jeopardy clause of the Constitution.

Rivera’s opposition to the (favorable) outcome of his own

motion is a peculiar reason for such a long delay, now

approaching four years, because it has been settled for a

long time that the double jeopardy clause does not forbid

a second trial when the defendant persuades a court to

overturn the outcome of the first. The double jeopardy

clause gives the defendant a right to keep a favorable

disposition, but it does not bind him to an unfavorable

turn of events if he prefers to take his chances anew. Thus

if the defendant asks for a mistrial, there is no constitu-

tional problem with another trial. United States v. Dinitz,

424 U.S. 600 (1976). If the defendant appeals a conviction,

reversal may be followed by a new trial. United States v.

Ball, 163 U.S. 662, 672 (1896); Burks v. United States, 437

U.S. 1, 13-16 (1978). Closer to the point, if after being

found guilty the defendant seeks a retrial in the interest

of justice under Fed. R. Crim. P. 33 or its counterparts in

state practice—perhaps because the evidence is at the

borderline of legal sufficiency—the double jeopardy clause

does not prevent a court from fulfilling the accused’s re-

quest. Tibbs v. Florida, 457 U.S. 31 (1982); Hudson v.

Louisiana, 450 U.S. 40 (1981). If it were impossible to

hold a new trial when the evidence was close to the line

nee

— ———————————

No. 98-1703 App. 3 3

or otherwise questionable, then more defendants would

stand convicted on weak evidence; courts would enforce

thinly supported verdicts if the only alternative were ac-

quittal. Tibbs, 457 U.S. at 45 n.22.

Rivera asked for a new trial rather than acquittal. The

judge’s statement that “the Court could have made a mis-

take in this case” (emphasis added) sounds like a conclu-

sion that uncertainty justifies a new trial in the interest

of justice. Other parte of the brief exposition sound more

like a conclusion that the evidence just did not persuade

him as trier of fact, which would amount to an acquittal.

Which reading is best? Judge McSweeney-Moore (who was

to preside at the second trial and denied Rivera’s motion

to dismiss), and the state’s court of appeals (which af-

firmed on an interlocutory appeal), understood Judge

Strayhorn the former way rather than the latter. Judge

McSweeney-Moore remarked that Judge Strayhorn, who

has served since 1970, knows how to enter an acquittal

and would not have set the case for a new trial had he

disbelieved the eyewitness. The court of appeals concurred

in an unpublished order. People v. Rivera, No. 1-95-0978

(Ill. App. 1st Dist. Dec. 26, 1996). But the federal district

court issued a writ of habeas corpus under 28 U.S.C.

§2254, reasoning:

The trial judge in this case had a legal obligation to

deny the new trial motion (which was based on the

sufficiency of the evidence) and sustain the conviction

if he was convinced beyond a reasonable doubt of peti-

tioner’s guilt. We presume that he knew the law and

applied it in making his ruling. The irresistible infer-

ence, therefore, is that by reconsidering the finding of

guilt, vacating the conviction and ordering a new trial,

the trial judge acquitted petitioner.

1998 U.S. Dist. LExis 2250 at *15 (citations omitted). Un-

der the double jeopardy clause an acquittal in a bench

trial is conclusive. Finch v. United States, 433 U.S. 676

(1977). Yet the cornerstone of the district judge’s ap-

proach—the reason he thought that J udge Strayhorn must

App. 4

4 No. 98-1703

have acquitted Rivera—is a belief that Illinois prohibits a

judge from granting a retrial in the interest of justice

following a bench trial; the judge must either convict or

acquit. This contradicts the conclusion the state’s appel-

late court reached in this very case, as well as other

authority recognizing that in Illinois judges have three

options following a bench trial: conviction, acquittal, or a

new trial (because of legal errors in the first trial, or in

the interest of justice). See People v. Castiglione, 75 Iil.

App. 3d 469, 394 N.E.2d 607 (1st Dist. 1979); cf. Ill. Sup.

Ct. R. 615(b); People v. Jones, 286 Ill. App. 3d 777, 676

N.E.2d 1335 (1st Dist. 1997). Federal judges may not issue

writs of habeas corpus based on interpretations of state

law that depart from the views the state courts them-

selves hold. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Evidence in the case was legally sufficient to convict

Rivera. Someone shot and killed Weydowing LaPorte and

tried to kill Jacqueline Vicario and Samuel Aponte, the

passengers in his car. Vicario survived the spray of bullets

and identified Rivera, a member of a rival gang, as the

assassin. One eyewitness is enough, if the trier of fact

believes that witness, as Judge Strayhorn did (at least

immediately after the close of the evidence). Burks, which

holds that an appellate court’s decision that the evidence

is insufficient precludes a retrial, therefore does not assist

Rivera. (Because the state’s appellate court examined the

evidence and found it sufficient, the holding of Richardson

v. United States, 468 U.S. 317 (1984), that Burks is lim-

ited to cases in which the court did find the evidence in-

sufficient independently precludes reliance on Burks.) So

unless there is compelling support for the conclusion that,

despite the state courts’ contrary decisions, Judge Stray-

horn actually acquitted Rivera—which is to say, resolved

in his favor at least one of the factual elements of the

offense, see United States v. Martin Linen Supply Co., 430

U.S. 564, 571 (1977)—the state is entitled to retry him.

One might suppose that whether Judge Strayhorn made

such a finding is a question of fact, on which the state

ee A lt RN i AE at i ES deh Data Nh iw ae: ice

—

App. 5

No. 98-1703 5

courts’ negative answer is presumed to be correct. 28

U.S.C. §2254(e)(1). (Because Rivera’s petition was filed

after April 24, 1996, we cite §2254 as amended by the

Antiterrorism and Effective Death Penalty Act. See Lindh

v. Murphy, 117 S. Ct. 2059 ( 1997).) Interpretation of an

ambiguous statement by a judge does not present any

question of constitutional law. The question is what the

speaker sought to convey, not what a rule of law compels

the state to do; it is a question of fact for the same reason

that “the state of a man’s mind is as much a fact as the

state of his digestion.” Edgington v. Fitzmaurice, 29 Ch.

Div. 459, 483 (1885). See Banks v. Hanks, 41 F.3d 1187,

1189 (7th Cir. 1994). In Greene v. Massey, 437 U.S. 19

(1978), a companion to Burks, the state court issued an

ambiguous opinion that could have been read to say that

the evidence was legally insufficient, but also could have

been read in other ways. The Supreme Court held that the

state courts should themselves determine the right way to

understand their pronouncements. See also Tibbs, 457

U.S. at 47 n.24, another case in which the defendant

insisted that a state court acquitted him: “the meaning

attached to an ambiguous prior reversal is a matter of

state law.” Whether the meaning of Judge Strayhorn’s oral

statement is a question of fact or of state law, the upshot

is the same: a federal court may not reach an independent

conclusion on the subject, but must respect the state

courts’ resolution.

Nonetheless, the lawyers representing Illinois in this

case have declined to rely on §2254(e)(1) and do not con-

tend that state law is dispositive. Although Kamen v.

Kemper Financial Services, Inc., 500 U.S. 90 ( 1991), shows

that we may disregard litigants’ positions about choice-of-

law issues, it is not necessary to follow that course today.

Even if §2254(d) supplies the standard, the state must

prevail. As amended by the AEDPA, this statute reads:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

asp. 6

6 PP No. 98-1703

claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceed-

ing.

The state courts’ conclusion that Judge Strayhorn did not

acquit Rivera cannot be called “an unreasonable determi-

nation of the facts in light of the evidence presented in the

State court proceeding.” It is a plausible descrambling of

an ambiguous oral remark. Likewise the state courts’

conclusion cannot be called “contrary to, or... an unrea-

sonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States”.

No rule of federal law tells state courts how to interpret

ambiguous judicial statements; as Greene and Tibbs say,

the subject is not governed by federal law at all. Necessar-

ily, therefore, the state courts did not apply the (nonexis-

tent) federal law unreasonably.

The only rule of federal law in the picture is the norm

that an acquittal following the attachment of jeopardy

bars a second trial. Sanabria v. United States, 437 U.S. 54

(1978); Fong Foo v. United States, 369 U.S. 141 (1962). (It

does not preclude the possibility of replacing the acquittal

with a conviction, if that can be done without a second

trial. United States v. Wilson, 420 U.S. 332 (1975).) But

whether Judge Strayhorn resolved in Rivera’s favor one or

more of the factual elements of the offense, and thereby

acquitted him, is a subject to which constitutional law

does not speak. This is one of the many subsidiary issues

that a court must decide in the course of applying law to

the facts of a given case, and which under §2254(d)(1) may

———————

App. 7

No. 98-1703 7

be overturned in collateral litigation only if the state court

has acted unreasonably. See Lindh v. Murphy, 96 F.3d

856, 868-71 (7th Cir. 1996) (en banc), reversed on other

grounds, 117 S. Ct. 2059 (1997). See also Neelley v. Nagle,

138 F.3d 917, 922-27 (11th Cir. 1998). Judge Strayhorn

did not say that he was acquitting Rivera or resolving any

factual issue in his favor, and the Illinois courts did not

act unreasonably in concluding that the order was not an

acquittal.

REVERSED

CUDAHY, Circuit Judge, concurring. It seems to me that

the reality of what Judge Strayhorn said and did may be

reached a bit more directly than along the path followed

by the majority.

The majority opinion speaks of a “retrial in the interest

of justice .. . perhaps because the evidence is at the

border line of legal sufficiency.” Ante at 2. In common

parlance, I take this to be a reference to what follows a

determination that a verdict is against the weight of the

evidence. See Tibbs v. Florida, 457 U.S. 31, 42 (1982). In

the briefs of the parties and in the district court’s opinion

there is much discussion of the difference between a ver-

dict that is against the weight of the evidence and one

that is not supported by sufficient evidence. A verdict that

is against the weight of the evidence may be followed by

a retrial without violating the bar against double jeop-

ardy. See, e.g., id. On the other hand, a verdict that is not

supported by legally sufficient evidence operates as an

acquittal and the principles of double jeopardy preclude a

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

However, here the defendant argues that “the distinc-

tion between reversals based on the legal insufficiency of

the evidence and those where a reviewing court disagrees

App. 8

8 No. 98-1703

with the trier of fact’s resolution of conflicting evidence

and concludes that a guilty verdict is against the weight

of the evidence, . . . simply do not apply where, [as in the

present case], the judicial entity which set aside the guilty

verdict is the same judicial entity that made the initial

finding of guilty.” Appellee’s Br. at 8-9 (internal quota-

tions omitted). The defendant also attributes to the dis-

trict court the view that the “distinction between reversals

based on insufficiency and those based on weight is mean-

ingless in situations where . . . the trier of fact was the

same entity as the person or court setting aside the con-

viction.” Jd. at 9. And the district court seems to take this

analysis one step farther when in its opinion it says, “To

say that [Judge Strayhorn] granted a new trial because he

personally weighed the evidence and was unconvinced is,

therefore, the same as saying he acquitted the defendant.”

Appellant’s Br., App. A (Dis. Ct. Mem. Op. at 10).

But it seems to me that if, as it appears, Judge Stray-

horn’s decision was that his prior decision was against the

weight of the evidence, then his decision on the defen-

dant’s motion was to vacate and nullify his prior decision

and, in effect, to decline to make a decision. That his prior

decision may, on second thought, have appeared to have

been against the weight of the evidence does not mean

that it was unsupported by substantial evidence. From

this perspective, Judge Strayhorn granted a new trial be-

cause he had withdrawn and vacated the decision that he

had previously made. His stance in declining to decide

was analogous to that of a hung jury.

Retrial after a jury fails to reach a verdict is not barred

by considerations of double jeopardy. See, e.g., Richardson

v. United States, 468 U.S. 317, 323-25 (1984). Similarly,

the failure or refusal of a judge at a bench trial to enter a

decision presumably has no double jeopardy effect. Cf.

Wade v. Hunter, 336 U.S. 684, 688-89 (1949). And the

same result would follow when after a bench trial a judge

vacates a decision already made. This is certainly the case

if the defendant sought a new trial based on the setting

8 tr Dien naa

App. 9

No. 98-1703 9

aside of the decision reached in the first one. See North

Carolina v. Pearce, 395 U.S. 711, 720 (1969). Whether it

would be equally the case if the court sua sponte vacated

its own decision (assuming that this were authorized)

need not be decided here. Judge Strayhorn was, after all,

responding to a motion.

The district court, reviewing the arguments made to

Judge Strayhorn, his review of the evidence and other re-

lated factors, stated: “We find clear from the record that

the judge vacated the conviction because, in light of the

evidence, he was not convinced beyond a reasonable doubt

of petitioner’s guilt.” Appellant’s Br., App. A (Dis. Ct.

Mem. Op. at 8). Significantly, the district court did not

find that Judge Strayhorn vacated the conviction because

no reasonable factfinder could have been convinced beyond

a reasonable doubt of Rivera’s guilt; the district judge did

not say that “acquittal was the only proper verdict.” Tibbs,

457 U.S. at 42. Even if the district court’s reading of

Judge Strayhorn’s record is correct, the judge’s after-ac-

quired reasonable doubt serves only to vacate the prior

decision, not to modify it into an acquittal. His doubt is

not, as I have indicated, “the same as saying he acquitted

the defendant.” See id. at 42 n.17 (“disagreements among

jurors or judges do not themselves create a reasonable

doubt of guilt”). Hence, there is no double jeopardy here.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—Midwest Law Printing Co., Inc., Chicago—12-3-98

Hon.

App. 10

APPENDIX B

UNITED STATES COURT OF APPEALS

Por the Seventh Circuit

Chicago, Illinois 60604

February 1 ‘aoe | ieee

Before

RICHARD D. CUDAHY, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

EDWARDO RIVERA,

No.

Petitioner-Appellant,

98-1703 Ve

SHERIFF OF COOK COUNTY,

Respondent~-Appellant.

Appeal from the United

States District Court

for the Northern

District of Illinois,

Eastern Division.

No. 97 C 3581

John F. Grady, Judge.

Order

Petitioner~Appellee filed a

petition for rehearing and petition for

rehearing en banc on December 30, 1998.

App. 11

No judge in regular active service has

requested a vote on the petition for

rehearing en banc, and all of the judges

on the panel have voted to deny

rehearing. The petition for rehearing

is therefore DENIED.

APP- 12

APPENDIX C

97-35681.981-MEV Pebruary 17, 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

ex rel. EDWARDO RIVERA,

Petitioner,

Vv. No. 97 C 3581

SHERIFF OF COOK COUNTY )

)

Respondent.

R 5 is) 2)

Before the court is Edwardo

Rivera's petition for a writ of habeas

corpus based on the Double Jeopardy

Clause. For the reasons explained

below, the petition is granted.

BACKGROUND

On March 30, 1993, Weydowing

LaPorte, Jacqueline Vicario and Samuel

Ponte were driving home from a movie

Bias

App. 13

around midnight when a car pulled up

behind them and shone bright lights into

their car. The second car then pulled

alongside them, and a man with a

mustache and goatee fired gun shots into

their car, killing LaPorte. One month

later, petitioner was arrested and

charged with the crime. Petitioner was

tried before a judge rather than a jury,

The main evidence presented against him

was the testimony of Jacqueline Vicario.

(page 2]

At trial, petitioner's attorney

elicited testimony from Vicario that

indicated the bright light adversely

affected her vision during the crime.

About 35 days after the crime, Vicario

viewed a photographic spread and, that

evening, she was shown a line-up. fTr.,

App. 14

38-39. Her testimony also implied that

the line-up procedures were suggestive.

For example, Vicario identified

petitioner out of a line-up in which he

was the sole person with a mustache and

goatee.

Q: And in fact none of the other

men in the line up had a goatee,

did they?

A: No they didn't.

Q: Huh?

A: No they didn't.

Q: So you were only shown one

picture of one man in a line up who

had a goatee, correct?

A: Yes.

Transcript of the Proceedings, Oct. 5,

1994 (Tr.), 39. Vicario also stated

that she only picked petitioner out of

the line-up after having seen his

photograph and having been told that

App. 15

that very person would be in the line-

up.

yy oem

Q: [The police officer} told you

that the person whose picture you

picket out you were going to see in

the pine up?

A: Yes.

Q:And he told you that your job at

the line up was to see if the

person whose picture you were on

was on fact in the line up?

A: Yes. [page 3]

Q: And so you went to the line up

and you said to the police officer,

‘the man whose picture I picked out

I now see him in the line up,’

correct?

A: Yes.

38-39. Vicario also admitted at

trial that she told private detectives

-- who she thought were police officers

-~ that she was unsure about the

identification she had made.

Q: Well did they, let me ask you

this question: Let me ask you what,

Tr.,

App. 16

were these questions put to you and

did you give these answers.

Question: ‘If you were sworn

under oath in a Court of law

before a judge or jury and

they said is this the man who

shot [the victim) in front of

you, could you positively say

it was or absolutely say it as

him?!

Answer: ‘No.'

‘Are you sure?'

Answer: ‘Yes.'

Question: 'No way?'

Answer: '‘No.'

Were those questions and answers

put to you?

A: Yes.

Q.So you told them that you weren't

sure, correct?

A: Yes.

Q: You thought [the detectives]

were from the police right?

A: Yes.

;

App. 17

Q: So you told people who you

thought were, in your opinion, part

of the Chicago police that you were

not sure about your identification,

A: Yes.

Q: And you told people who you

believed that you were doubtful

about your ability to make an

identification?

A: Yes.

Tr. at 49.

The other witness in the car stated

that the petitioner resembled the

assailant, but only offered a tentative

identification. See Respondent's Ex.

H,at 5. Petitioner testified that he

did not commit the crime. on November

i0, 1995, the trial judge found

petitioner guilty of murder, attempted

murder and aggravated discharge of a

firearm. He permitted petitioner to

remain free on bond until sentencing.

App. 18

Petitioner filed a motion for a new

trial, arguing that Vicario's

identification was insufficient evidence

on which to convict him. On January 13,

1995, after hearing oral arguments, the

trial judge granted the motion for a new

trial.

The Court: This being a single

witness identification case in

essence the law is a single witness

must convince the trier of fact

beyond a reasonable doubt of that

identification.

Next going over the transcripts and

listening to arguments the Court is

of the opinion that the Court could

have made a mistake in this case.

And this being a murder case I am

not going to take the chance of my

mistake leading this man to be

wrongfully convicted.

I am going to grant his motion for

me to reconsider. I will vacate

the finding of guilt, reinstate his

plea of not guilty. And I am going

to order that he be back here to

stand trial before another Judge in

this courtroom on February 6th.

App. 19

[page 5) Transcript of the Proceedings,

Jan.13, 1995, 6-7, Petitioner filed a

motion for double jeopardy discharge

before the new judge, but the motion was

denied. Remaining free on bond, *

petitioner appealed that decision. The

Illinois Appellate court affirmed the

judgment, and the Illinois Supreme Court

denied a Petition for Leave to Appeal.

* Even though petitioner is free

on bond, he is still in "custody" under

§ 2254. See Hensie i fe)

411 U.S. 345, 351 (1973) (establishing

that a person released on bail on his

own recognizance is in custody for

purposes of the habeas statute because

he is still under restraint); Delk v,

Atkinson, 665 F.2d 90, 93 (6th Cir.

1981) (holding that petitioner was in

custody even though he was free on bail

when he filed his habeas application

based on double jeopardy grounds); see

also : e' 2)

[ele) , 761 F.2d 405, 408 (7th Cir.

1985) (recognizing that a person out on

bail is still in custody for purposes of

the habeas corpus statute).

App. 20

DISCUSSION

A federal court may grant a writ of

habeas corpus when, under a state court

judgment, a person is held in custody in

violation of the United States

Constitution. 28 U.S.C. § 2254 (1996);

oc} P , 101 F.3d 465, 468

(7th Cir. 1996). Before a federal court

will consider the merits of a habeas

petition, the applicant must exhaust the

remedies available to him in state

court. 28 U.S.C. § 2254(b) (1) (A);

(9(1971); Jo _ e ton, 15 F.3d

671, 674 (7th Cir. 1994). The applicant

also must fairly present any federal

claims in state court first, or risk

procedural default. Ye QO'Le ,

972 F.2a 1467, 1472-73 (7th Cir. 1992).

App. 21

{page 6]

Under the federal habeas Statute, a

State court's findings of fact are

presumptively correct. 28 U.S.C. §

2254(e)(1).° A petitioner may challenge

them, but the facts are rebutted only by

Clear and convincing evidence. id. As

to legal issues, this court may grant a

writ of habeas corpus only when the

lower court's holding is "contrary to"

or an “unreasonable application of"

United States Supreme Court precedent.

* Section 2254 (e)(1) reads:

In a proceeding instituted by an

application for a writ of habeas

corpus by a person in custody

pursuant to the judgment of a State

court, a determination of a factual

issue made by a State court shall

be presumed to be correct. The

application shall have the burden

of rebutting the presumption of

correctness by clear and convincing

evidence.

App. 22

28 U.S.C. § 2254 (dad) (1) & (2).’

Petitioner argues that the second

trial subjected him to double jeopardy

and thus, violated his rights under the

Fifth and Fourteenth Amendments. See

U.S. CONST. amend. V & XIV. He relies

*> The language of 28 U.S.C. § 2254

reads:

(ad) An application for a writ of

habeas corpus on behalf of a person

in custody pursuant to the judgment

of a State court shall not be

granted with respect to any claim

that was adjudicated on the merits

in State court proceedings unless

the adjudication of the claim --

(1) resulted in a decision

that was contrary to, or

involved an unreasonable

application of, clearly

established Federal law, as

determined by the Supreme

Court of the United States; or

(2) resulted in a decision

that was based on an

unreasonable determination of

the facts in light of the

evidence presented in the

State court proceeding.

On Hudson v. Lo lana, 450 U.S. 40

(1981), for the Proposition that when a

trial court grants a motion for a new

trial on the basis that there may be

reasonable doubt of the defendant's

guilt, the Double Jeopardy Clause

mandates that the defendant cannot be

{page 7] retried. It is undisputed that

petitioner has exhausted his State court

remedies,

Respondent argues that the Double

Jeopardy Clause does not bar retrial

because the trial judge's order was not

an acquittal. First, the judge may have

ordered the new trial in order to

correct procedural errors that occurred

during the first trial. For example, in

petitioner's written motion for a new

trial, he argued that the evidence was

App, 24

insufficient to sustain a conviction,

that hearsay testimony was erroneously

admitted, and that admission of other

evidence denied him due process. If

trial errors were the basis for ordering

the new trial, the Double Jeopardy

Clause does not bar retrial. See Tibbs

Vv. Florida, 457 U.S. 31, 40 (1982)

(explaining that a defendant whose

conviction has been set aside as a

result of a defect in the trial may be

retried because society would pay too

high a price if a retrial were barred in

those circumstances).

Petitioner replies that the only

issue he orally argued before the trial

court was whether the evidence, in

particular Vicario's hesitant

identification of petitioner, was

App. 25

sufficient to sustain his conviction.

Transcripts of the proceeding support

this contention. See Respondent's ex.

H. The trial judge's statement, made

immediately following oral arguments,

referred only to the sole witness

testimony and the need to be convinced

of the identification beyond a

reasonable doubt. The judge stated that

he (page 8} had reviewed the transcripts

-~- @ fact that suggests evidentiary

review -- and considered the Oral

arguments. At that point, he expressed

his concern that he had made an error

and that petitioner could have been

“wrongfully convicted." Petitioner

argues that the phrase "wrongful

conviction," implies innocence, not a

case where proof of guilt had been

App. 26

sufficient but a new trial was necessary

because of trial defects. At no time

dia the judge even suggest that a trial

error was the reason for granting the

new trial. We find clear from the

record that the judge vacated the

conviction because, in light of the

evidence, he was not convinced beyond a

reasonable doubt of petitioner's guilt.

Respondent next argues that even if

the judge was unconvinced by the

evidence, that does not necessarily

signify an acquittal barring retrial

under the Double Jeopardy Clause.

Relying heavily on Tibbs v. Florida,

respondent says there is a distinction

between ordering a new trial because the

evidence is insufficient to convict and

ordering a new trial because the weight

App. 27

of the evidence is unconvincing to the

judge. In the former case, the Double

_ Jeopardy Clause precludes retrial

because it means that no reasonable fact

finder could have voted to convict the

defendant. Hudson, 450 U.S. at 44-45

(citing Burks v. United [page 9] States,

437 U.S. 1 (1978)); see also Tibbs, 457

U.S. at 40-41. Such a finding has the

force of an acquittal.‘

4 Some cases have held that this

type of an acquittal may be appealed,

reversed and the original conviction

reinstated. See United States v. Greer,

850 F.2d 1447, 1449 (1ith Cir. 1988)

(stating that a post-verdict acquittal

based on insufficient evidence maybe

appealed without violating the Double

Jeopardy Clause because reversal would

not result in further fact-finding

proceedings); United States v.

Singleton, 702 F.2d 1159, 1161-62 (D.C.

Cir. 1983) (same); United States v.

Steed, 674 F.2d 284, 286 (4th Cir. 1982)

(vacating a panel decision that had

accorded absolute deference to the trial

judge's finding that the evidence was

a TS BES Ri

App. 28

However, the result is different

when the judge grants a new trial

because he personally weighs the

evidence, disagrees with the jury's

resolution, and concludes that the

verdict is against the weight of the

evidence. Tibbs, 457 U.S. at 42. In

that case, the judge acts ag the "13th

juror," and the circumstances do not

signify an acquittal. Id. (analogizing

this situation to a hung jury, which

does not bar retrial under the Double

Jeopardy Clause). A reversal based on

the weight of the evidence, then,

“simply affords the defendant a second

opportunity to seek a favorable

judgment." Id, at 43. In this case,

respondent argues, the trial judge never

insufficient).

App. 29

Specifically stated that he was ordering

a new trial because the evidence was

insufficient to Sustain the conviction.

Indeed, he would not have ordered a new

trial before a different judge if the

evidence was insufficient. Moreover,

the Tllinois Appellate Court

Specifically found that the evidence was

sufficient to sustain the conviction.

See infra note 4. Thus, reasons

respondent, "the trial judge in this

case set aside petitioner's conviction

and granted a new trial because of the

weight, rather [Page 10) than

sufficiency, of the evidence." and

consequently, retrial was not barred by

the Double Jeopardy Clause. See Answer

to Petition for Writ of Habeas Corpus,

at 21.

App. 30

Petitioner argues that the

distinction urged in Tibbs is

meaningless in this situation because

the judge was the self-same trier of

fact. For example, the Tibbs rationale

has only been applied to situations

where the trier of fact was a different

entity from the person or court setting

aside the conviction. See e.g., Tibbs,

457 U.S. at 38-39 (new trial permissible

where jury rendered initial verdict and

Florida Supreme Court reversed because

certain findings of fact were

questionable); State v. Dasher, 297

S.E.2da 414, 416-17 (S.C. 1982)

(conviction stands where jury rendered a

verdict of guilty but trial judge set

aside the conviction, apparently because

of his assessment of a witness's

App. 31

Credibility). In a case such as this,

where the trial] judge was himself the

trier of fact, it was impossible for him

to act as the "13th juror." When he

vacated the conviction because of his

doubts about the evidence, petitioner

argues, he was necessarily finding

reasonable doubt of petitioner's guilt.

To say that he granted a new trial

because he personally weighed the

evidence and was unconvinced is,

therefore, the same as saying he

acquitted the defendant. The fact that

the judge actually ordered a new trial

rather than a formal acquittal does not

defeat this conclusion. See Hudson, 450

U.S. at 43-44 (determining that the

grant of a new (page 11) trial following

a conviction was actually an acquittal);

App. 32