# Petition for Writ of Certiorari — Rivera v. Sheriff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0767%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 527 U.S. 1022 ## Text 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 i (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 ee ii 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? iv (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. ee V (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. ... .. 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 see also Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986) (holding that grant of demurrer was actually an acquittal); United States v. Sisson, 399 U.S. 267, 290 (1970) (determining that “arrest of judgment" following a conviction was actually an acquittal). This is true because the court's duty is to analyze the substancr; of the ruling, not the label attached to it. See, e.g.,, Sisson, 399 U.S. at 290 (stating that "the trial judge's characterization of his own action cannot control the Classification of the action"). Moreover, a defendant does not waive his right to a judgment of acquittal by moving solely for a new trial. United States vy. Burks, 437 U.S. 1, 17 (1978). Petitioner concludes that because the App. 33 trial judge expressly predicated his ruling on his doubt of petitioner's guilt, his ruling was an acquittal. See Hudson, 450 U.S. at 43. Respondent does not address this argument, and points to no cases in which the person vacating the conviction is the very [page 12] person who made the finding of guilt.° The Illinois * We are aware of two cases in which a conviction following a bench trial was set aside by the trial judge. See United States v. Ceccolini, 435 U.S. 268 (1978); ; 729 F.2d 281 (4th Cir. 1984). Both cases are distinct from the one before us because the judge vacated the conviction after resolving legal issues unrelated to factual guilt or innocence. See Ceccolini, 435 U.S. at 270-71 (court vacated conviction after it granted defendant's motion to suppress the key piece of evidence against him); Kellerman, 729 F.2d at 283(district court set aside conviction because, as a matter of law, the check at issue was worthless and so defendant could not have misapplied funds). The government App. 34 Appellate Court did not discuss this aspect of the case. 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 petitioner's guilt. See e.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 was entitled to appeal the orders setting aside the finding of guilt because in the event of a reversal, no new trial would be necessary in that the reviewing court could simply reinstate the conviction. App. 35 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. See Smalis, 476 U.S. at 144 & n.6; [page 13] Justices of Boston Municipal court v. Lydon, 466 U.S. 294, 309 (1984); Swisher v. Brady, 438 U.S. 204, 226 (1978) (dissent); United states v. Scott, 437 U.S. 82, 97 (1978); Sanabria App. 36 v. United States, 437 U.S. 54, 71 (1978); Burks, 437 U.S. at 10; United States v. Martin Linen Supply Co., 430 U.S. 564, 5781 (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). This definition focuses on a resolution of factual issues, not on grounds unrelated to guilt or innocence. Id. at 98 & n.1l1 (commenting that a prejudicial pretrial delay does not relate to guilt or innocence, but hypothesizing that the App. 37 insanity defense does).*‘ 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. * Scott explained the rationale: [A] defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise. In other circumstances, this Court has had no difficulty in distinguishing between those rulings which relate to 'the ultimate question of guilt or innocence' and those which serve other purposes. Stone v. Powell, 428 U.S. 465, 490 (1976). App. 38 Subjecting a person to post- acquittal fact finding {page 14] proceedings going to guilt or innocence violates the Double Jeopardy Clause. Smalis, 476 U.S. at 145. Because petitioner may not be retried, we grant the petition for writ of habeas corpus. co U The court concludes that the petitioner is in the custody of respondent’ in violation of the ~ Since petitioner is free on bond, no one has actual custody of him. But, as the Seventh Circuit explained, "({tjhe important thing is not the quest for a mythical custodian, but that the petitioner name as respondent someone (or some institution) who has both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit -- namely, his unconditional freedom." Reimnitz, 761 F.2d at 409. In the case of a person out on bail, the court identified two possible aaa App. 39 Constitution of the United States. Accordingly, a writ of habeas corpus will issue, ordering respondent to release the petitioner unconditionally, forthwith and without retria). DATED: February 17, 1998 ENTER: [Signature] John F. Grady, United States District Judge respondents: the Sheriff of Cook County and the circuit court of Cook County. id. at 408-09 (reasoning that it was Proper for petitioner to name the circuit court as respondent). Thus, it was proper for petitioner to name the Sheriff as respondent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0767%3A1. Public record. Not legal advice.