Appendix — Robinson v. Neil

6

voluntary pleas of guilty. (See attached certified copies

of the judgments of conviction.)

It is therefore urged upon this Court that considers-

tion of the factors of purpose, reliance on the old rule

and burden on the administration of justice in the State

of Tennessee are entitled to such overriding significance

as to deny retroactive application of the rule laid down

in Waller.

Respectfully Submitted

/s/ Edward E. Davis

EDWARD E. Davis

District Attorney General

For Respondent

[Certificate of Service (Omitted in Printing) ]

JUDGMENT

IN THE CRIMINAL COURT

OF HAMILTON COUNTY, TENNESSEE

DIVISION II

October 4, 1962

Court met pursuant to adjournment, present and presid-

ing the Honorable Tillman Grant, Judge, etc., when

the following proceedings were had, to-wit:

103812

STATE v. SAMUEL ED RoBINSON—Felonious Assault

Came the Attorney General and the defendant in per-

son, and this case came on for trial on the defendant’s

plea of guilty to the offense of Assault With Intent to

Commit Murder in the First Degree before the Court

and the following jury, to-wit: Mrs. J. H. Lee, A. N.

Lindsay, W. A. Uren, Robert T. Malone, Jr., John F.

Hoodenpyle, Louie E. Henry, B. D. Sutherland, Paul D.

Cooper, Saul Hyman, Robert R. Cooper, Milburn Hassler

and Raymond L. Robbins, all duly qualified, elected and

sworn, who fix the punishment for the defendant at a

term of not more than 10 years in the penitentiary.

It is therefore the judgrifent of the Court that the

defendant be confined in the penitentiary for a term

of not less than 10 years nor more than 10 years and pay

“ costs. Execution will issue against the defendant for

e costs.

108810. «

STATE v. SAMUEL ED ROBINSON—Felonious Assault

Came the Attorney General and the defendant in per-

son, and this case came on for trial on the defendant’s

plea of guilty to the offense of Assault With Intent to

Commit Murder in the First Degree before the Court and

the following jury, towit: Mrs. J. H. Lee, A. N. Lindsay,

W. A. Uren, Robert T. Malone, Jr., John F. Hoodenpyle,

Louie E. Henry, B. D. Sutherland, Paul D. Cooper, Saul

Hyman, Robert R. Cooper, Milburn Hassler and Raymond

L. Robbins, all duly qualified, elected and sworn, who

fix the punishment for the defendant at a term of not

more than 5 years in the penitentiary.

It is therefore the judgment of the Court that the

defendant be confined in the penitentiary for a term of

not less than 3 years nor more than 5 years, and pay

all costs. Execution will issue against the defendant for

the costs.

It is further ordered that the sentence in this case run

consecutively to the sentence in Case Number 103812.

103811

STATE v. SAMUEL Ep RosinsoN—Felonious Assault

Came the Attorney General and the defendant in per-

son, and this case came on for trial on the defendant’s

plea of guilty to the offense of Assault With Intent to

Commit Murder in the First Degree before the Court and

the following jury, to-wit: Mrs. J. H. Lee, A. N. Lindsay,

W. A. Uren, Robert T. Malone, Jr., John F. Hoodenplye,

Louie E. Henry, B. D. Sutherland, Paul D. Cooper, Saul

Hyman, Robert R. Cooper, Milburn Hassler and Raymond

L. Robbins, all duly qualified, elected and sworn, who

fix the punishment for the defendant at a term of not

more than 10 years in the penitentiary.

It is therefore the judgment of the Court that the

defendant be confined in the penitentiary for a term of

not less than 8 years nor more than 10 years and pay

all costs. Execution will issue against the defendant for

the costs.

It is further ordered that the sentence in this case run

consecutively to the sentence in Case Number 1038810.

Thereupon Court adjourned until tomorrow morning at

9:15 A. M.

/s/ Tillman Grant

TILLMAN GRANT

Judge

[Clerk’s Certificate (Omitted in Printing) ]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

vs.

W. S. NEIL, Warden, Tennessee State Penitentiary

ORDER—Filed June 9, 1970

This is a proceeding upon a petition for a writ of

habeas corpus. The respondent has now filed an answer.

The sole question raised by the record as it is presently

constituted is whether the holding of Waller v. Florida,

88 L. W. 4263 (April 6, 1970) should be applied retro-

actively. The Court is of the opinion that this matter

may properly be decided upon briefs without the need for

an evidentiary hearing. The defendant has filed a brief

in support of his position. The petitioner will be allowed

20 days to submit his brief on the legal issue here

presented. Upon receipt of the petitioner’s brief or upon

the expiration of time for the filing thereof, the Court

will proceed to a cecision of the issue presented.

It-is SO ORDERED.

APPROVED FOR ENTRY.

FRANK W. WILSON

United States District Judge

10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

vs.

WILLIAM §. NEIL, Warden, Tennessee State Penitentiary

MEMORANDUM—September 22, 1970

This is a proceeding upon a petition for a writ of

habeas corpus wherein the petitioner seeks to set aside

his convictions and sentences in three cases, each entitled

State of Tennessee v. Samuel Ed Robinson, being Docket

Nos. 103,810, 103,811, and 103,812 in the Criminal Court

for Hamilton County, Tennessee.

It appears undisputed in this case that the petitioner

was tried and convicted of three offenses of assault and

battery in violation of an ordinance of the City of

Chattanooga, and was fined $50.00 and assessed costs

upon each offense. Thereafter, on September 26, 1962,

a grand jury of Hamilton County returned three in-

dictments in the above three cases, each charging pe

titioner with an offense of assault with intent to commit

first degree murder. The occurrences giving rise to the

three indictments were the same as those giving rise to

the three city charges. Upon petitioner’s plea of guilty

to the indictments, he received two sentences of three to

ten years and one sentence of three to five years, such

sentences to run consecutively. Upon July 12, 1966, pe

titioner filed a petition for a writ of habeas corpus in the

Criminal Court for Davidson County, Tennessee, upon

grounds of double jeopardy. The writ was denied. Pe-

titioner appealed to the Tennessee Supreme Court, which

affirmed the judgment below. Upon March 28, 1967,

petitioner filed a petition for a writ of habeas corpus

in the United States District Court for the Middle Dis-

trict of Tennessee upon grounds of ‘double jeopardy. This

ll

action was subsequently transferred to this court. By

order dated May 15, 1967, this Court denied the writ.

See Samuel Ed Robinson v. C. Murray Henderson, 268

F. Supp. 349 (E. D. Tenn., 1967). Petitioner appealed

to the Sixth Circuit Court of Appeals, which affirmed

this Court’s denial of the writ by order dated April 10,

1968.

The instant petition again raises the double jeopardy

argument. As in ‘the prior petition filed in 1967, the

petitioner’s sole contention in the instant case is that

he was twice placed in jeopardy for the same offense

and that the convictions and sentences resulting from

the second trial are therefore invalid. The petitioner

‘relies upon the recently decided Supreme Court case of

Waller v. Florida, 25 L. Ed., 435 (April 6, 1970). The

facts, as stated above, being undisputed, the issue before

the Court is one of law.

The facts in Waller v. Florida were as follows. Joseph

Waller, together with a number of other persons, re-

moved a canvas mural from the wall inside of the City

Hall in St. Petersburg, Florida. As a result of this act,

Mr. Waller was found guilty in municipal court of

destruction of city property and disorderly breach of the

peace and was sentenced to 180 days in the county jail.

Subsequently, an information was filed against Mr. Wal-

ler charging him with grand larceny. Mr. Waller was

found guilty of the charge, was sentenced to six months

to five years, less 170 days of the 180-day sentence im-

posed by the municipal court. It was undisputed that

the same facts gave rise to the city and state charges

placed against Mr. Waller. In discussing the applicability

of the Fifth Amendment’s prohibition against double

jeopardy as applied to the States in Benton v. Maryland,

895 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969),

the Court specifically held as follows:

“We decide only that the Florida courts were in

error to the extent of holding that—

‘,.. even if a person has been tried in a munici-

pal court for the identical offense with which he is

charged in a state court, this would not be a bar

to the prosecution of such person in the proper

state court.’ ”

The Court concluded that the defendant’s second trial

based on the same facts giving rise to the municipal

court trial constituted double jeopardy violative of the

Fifth and Fourteenth Amendments to the United States

Constitution.

The relevant factual situation in the instant case and

in Waller are substantially identical. The only legal

problem presented is whether the holding in Waller

should be applied retroactively. The petitioner contends

that it should. On the other hand, the respondent sub-

mits that the holding in Waller should be applied pros-

pectively only. In support of his legal position the pe

titioner relies upon certain footnotes in Waller v. Florida,

supra, and in Ashe v. Swenson, —— U.S. ——, —

L. Ed. 2d —— (1970). The respondent on the other

hand relies upon the criteria outlined in Stovall v.

Denno, 388 U.S. 298, 87 S. Ct. 1967, 18 L. Ed. 2d

1199, and Desist v. United States, —— U.S. ——, ——

S. Ct. ——, 22 L. Ed. 2d 248 (1969).

Before reviewing these criteria relied upon by the

respondent, attention will be focused first upon the re-

cent Supreme Court cases dealing specifically with the

double jeopardy issue. The relevant portion of the Fifth

Amendment to the United States Constitution provides:

“... nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb. . .” In

Benton v. Maryland, —— U.S. ——, —— S. Ct. —,

23 L. Ed. 2d 707 (1969), the Supreme Court stated:

“. . [Wle today find that the double jeopardy pro-

hibition of the Fifth Amendment represents a funda-

mental ideal in our constitutional heritage, and that

it should apply to the States through the Fourteenth

Amendment. Insofar as it is inconsistent with this

holding, Palko v. Connecticut is overruled.”

The defendant in Benton was tried in a state court for

burglary and larceny. The defendant was convicted upon

the burglary count but was found not guilty upon the

larceny count. On appeal his conviction for burglary was

set aside and the case was remanded for reindictment

13

and retrial. The defendant was reindicted upon both

the larceny and the burglary charge and upon retrial

was convicted of both charges. The conviction was af-

firmed on appeal by the state court, but reversed by the

United States Supreme Court. Justice Marshall, speak-

ing for the Court, stated: “It is clear that petitioner’s

larceny conviction cannot stand once federal double jeop-

ardy standards are applied.”

‘North Carolina v: Pearce, —— U.S. ——, —— S. Ct.

—, 23 L. Ed. 2d 656 (1969), decided the same day

as Benton v. Maryland, supra, again dealt with the

mandates of the Double Jeopardy Clause. As a prelude

to its decision, the Court made the following comments

relative to the scope of the Double Jeopardy Clause:

“The Court has held today, in Benton v. Maryland,

— US. ——, 23 L. Ed. 2d 707, 89 S. Ct. —,

that the Fifth Amendment guarantee against double

jeopardy is enforceable against the States through

the Fourteenth Amendment. That guarantee has been

said to consist of three separate constitutional pro-

tections. It protects against a second prosecution

for the same offense after acquittal. It protects

against a second prosecution for the same offense

after conviction. And it protects against multiple

punishments for the same offense.”

With this analysis of the guarantee against double jeop-

ardy, the Court went further and held that:

“The constitutional guarantee against multiple pun-

ishments for the same offense absolutely requires that

punishment already exacted must be fully ‘credited’

in imposing sentence upon a new conviction for the

same offense.”

Further, the Court concluded that neither the Double

Jeopardy Clause nor the Equal Protection Clause ab-

solutely proscribes a more severe sentence upon recon-

viction.

Upon April 6, 1970, the Supreme Court decided Waller

v. Florida, supra, upon which the petitioner in the in-

_ stant case relies. The decision of the Court has hereto-

14

fore been outlined and will not be repeated. However,

in arriving at the decision in Waller the majority and

concurring opinions offer certain language that is rele

vant to the question presented by the instant case.

Initially, Justice Burger notes the holding in Benton vy.

Maryland and states further:

“Here, as in North Carolina v. Pearce, 395 U.S. 711,

23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), Benton

should be applied to test petitioner’s conviction, al-

though we need not and do not decide whether each

of the several aspects of the constitutional guarantee

against double jeopardy requires such application

in similar procedural circumstances.”

As a footnote to the aforementioned comment, Justice

Burger provides the following admonition:

“Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d

707, 89 S. Ct. 2056 (1969) controls any case which

arises in its ambit. See Ashe v. Swenson, —— USS.

at n. 1, 25 L. Ed. 2d at 469, 90 S. Ct

—. Nonetheless, when this Court granted certio-

rari in Price v. Georgia, No. 269, 1969 term, it re-

quested that counsel “brief and argue [the] ques-

tion of retroactivity of Benton v. Maryland [395

U.S. 784, 28 L. Ed. 2d 707, 89 S. Ct. 2056], and

whether that decision is applicable to this case.” 395

U.S. 975, 28 L. Ed. 2d 764, 89 S. Ct. 2138 (1969).

By our decisions in the instant case and in Ashe

v. Swenson, supra, we do not resolve with respect

to the circumstances presented in Price v. Georgia,

supra, either of the two questions posed by the

Court in that case.” (Emphasis added)

Justice Brennan, however, in his concurring opinion ex-

presses his views on Benton in the following terms:

“T adhere to the Court’s holding in Ashe v. Swenson,

—— U.S. at —— n 1, 25 L. Ed. 2d at 469, 90 S. Ct.

——, that our decision in Benton v. Maryland, 395

U.S. 784, 28 L. Ed. 2d 707, 89 S, Ct. 2056 (1969),

holding the Double Jeopardy Clause of the Fifth

Amendment applicable to the States, is ‘fully “ ‘retro-

15

active’ ”.’ See also North Carolina v. Pearce, 395

U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).”

In Ashe v. Swenson, —— U.S. ——, —— 8S. Ct. ——,

25 L. Ed 2d 469 (1970) decided the same day as Waller

y. Florida, supra, the Supreme Court held that in view

of Benton v. Maryland, supra, the federal rule of col-

lateral estoppel is embodied in the Fifth Amendment

guarantee against double jeopardy. Mr. Justice Stewart

wrote the majority ‘opinion and expressed the opinion of

seven members of the Court. In footnote 1 Justice Stew-

art made the following observation:

“There can be no doubt of the ‘retroactivity’ of the

Court’s decision in Benton v. Maryland. In North

Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656,

89 S. Ct. 2072, decided the same day as Benton, the

Court unanimously accorded fully ‘retroactive’ effect

to the Benton doctrine.”

The final case decided last term by the Supreme Court

in the double jeopardy area was Price v. Georgia, ——

US. ——, —— S. Ct. ——, 26 L. Ed. 2d 300 (1970).

In the Price case, the defendant was tried upon a charge

of murder and the jury returned a verdict of guilty as

to the lesser included offense of voluntary manslaughter.

The conviction was reversed on appeal and.the defendant

was retried over his objection upon the original charge of

murder. The Supreme Court in setting aside the second

conviction held that while the accused could have been

retried upon the lesser included offense of voluntary man-

slaughter, the double jeopardy prohibition of the Fifth

Amendment prohibited his being twice put in jeopardy

on the murder charge even though on the second trial

he was convicted only of the same lesser offense as in the

first trial.

Once again in footnote 9 Chief Justice Burger makes

the following observation:

“The last of the decisions of the Georgia court af-

firming the petitioner‘s conviction was rendered on

September 24, 1968, well before Benton was de-

cided. But Benton has fully retroactive application.

See Waller v. Florida, 397 U.S. 387, 391 n. 2 (1970),

16

Although there has never been a reasoned analysis

by the Supmere Court on the issue of retroactivity, this

Court can only conclude from the above review of the

cases that Benton v. Maryland and Waller v. Florida

should each be accorded fully retroactive application.

See also in this connection Mullreed v. Kropp, (C.A. 6

1970) 425 F. 2d 1095.

Were this Court to make its aitervatiatiois of retro-

activity on the basis of the criteria laid down by the

United States Supreme Court in the cases of Linkletter

v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct.

1781 (1965); Stovall v. Denno, 388 U.S. 293, 18 L. Ed

2d 1199, 87 S. Ct. 1967 (1967); and Desist v. United

States, 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030

(1969), a different result might well be required. Con-

sidering the extent of reliance by law enforcement au-

thorities upon the rule as it existed prior to Waller v.

Florida, considering the effect on the administration of

justice occasioned by the new rule laid down in that case,

and noting particularly the large number of jurisdictions

that have treated municipalities and the state as separate

sovereigns for double jeopardy purposes (see footnote 3

in Waller v. Florida), this Court is of the opinion that

a careful and reasoned inquiry should be made as to

whether the administration of justice might not be ser-

iously disrupted by retroactive application of the rule

in Waller v. Florida. It appears however, for the reasons

stated above, that that inquiry is now precluded, at least

to a lower federal court.

A judgment will accordingly enter setting aside the

petitioner’s convictions and sentences in Criminal Docket

Nos. 103,810, 103,811, and 103,812 in the Criminal Court

for Hamilton County, Tennessee. The petitioner will be

forthwith released from any further custody by reason

of the said convictions and sentences.

The entry of a judgment in accordance with this

memorandum will be stayed for a period of seven days

to permit the parties to make representations unto the

Court regarding the form of the order to be entered,

including any provisions regarding the release of the

petitioner, regarding an appeal, regarding any further

stay pending appeal, and regarding bail pending appeal.

17

Reference in this regard is made to Rule 23(c), Federal

Rules of Appellate Procedure. An oral hearing will be

held upon these matters at 4:00 p.m. on September 29,

1970, at which the petitioner need not be present in

person but will be represented by counsel.

FRANK W. WILSON

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

v8.

WILLIAM §S. NEIL, Warden, Tennessee State Penitentiary

ORDER—September 29, 1970

A conference was held upon this 29th day of Septem-

ber, 1970, pursuant to the memorandum of the Court

heretofore entered on September 22, 1970, as regards

the form and conditions of the judgment to enter on the

said memorandum. Present at the conference were James

D. Robinson, counsel for the petitioner, and General Ed-

ward E. Davis, District Attorney General, counsel for

the respondent. Upon representation of counsel for the

respondent that he proposed to immediately file a petition

to reconsider and upon request that the entry of a judg-

ment be further stayed herein, the Court, after receiving

argument of counsel, concluded that a further stay of

ten days should be granted to receive and consider any

motion to reconsider. A further hearing will be set here-

in upon October 7, 1970, at 4:00 p.m. at which the Court

will receive oral argument in support of the motion to

reconsider.

It is SO ORDERED.

APPROVED FOR ENTRY.

FRANK W. WILSON

United States District Judge

18

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

v8.

Wiliam §. NEIL, Warden, Tennessee State Penitentiary

ORDER—Filed October 27, 1970

This action is presently before the Court upon the

respondent’s motion to reconsider. The respondent seeks

by this motion to have this Court reconsider its memo-

randum of September 22, 1970, wherein the Court held

that the case of Waller v. Florida, — US. —, —

S. Ct. ——, 25 L. Ed. 2d 435 (April 6, 1970) should

be accorded "fully retroactive application.

Having considered the brief of the respondent and

argument of counsel and having re-examined the rele-

vant cases upon this matter, the Court is of the opinion

that its memorandum of September 22, 1970, was in

error to the extent of holding that:

“Although there has never been a reasoned analysis

by the Supreme Court on the issue of retroactivity,

this Court can only conclude from the above review

of the cases that Benton v. Maryland and Waller v.

Florida should each be accorded fully retroactive

application.”

Upon re-examination of North Carolina v. Pearce, 23

L. Ed. 2d 656 (1969); Benton v. Maryland, 23 L. Ed. 2d

707 (1969); Waller v. Florida, 25 L. Ed. 2d 485 (1970) ;

Ashe v. Swenson, 25 L. Ed 2d 469 (1970); and Price

v. Georgia, 26 L. Ed. 2d 300 (1970), it is quite clear

that the holding in Benton v. Maryland, namely that the

double jeopardy prohibition of the Fifth Amendment ap-

plies to the states through the Fourteenth Amendment,

is to be accorded fully retroactive application.

19

However, close re-examination of these cases also dis-

closes that the pronouncement of the Supreme Court re-

garding retroactivity in each instance refers only to the

holding in the case of Benton v. Maryland, supra, and

that the Supreme Court has neither directly nor by im-

plication accorded Waller v. Florida, supra, retroactive

application insdfar as the Waller case holds that the

“dual sovereignty” theory is an anachronism and should

be abrogated with regard to city and state prosecutions. -

- Accordingly, this Court’ is of the opinion that the

retroactivity of Waller v. Florida has not been resolved

by the Supreme Court and must therefore be determined

on the ‘basis of the criteria established by the Supreme

Court in the cases of Linkletter v. Walker, 381 U.S. 618

(1965); Stovall v. Denno, 388 U.S. 298 (1967); and

Desist v. United States, 394 U.S. 244 (1969).

In this regard, the Court is further of the opinion

that an evidentiary hearing should be held upon No-

vember 3, 1970, at 3:00’ p.m. in order to afford both

parties an opportunity to present evidence and argument

upon (1) the purpose to be served by the abrogation of

the dual sovereignty theory with regard to city and state

prosecutions; (2) the extent of the reliance by law en-

forcement authorities upon the dual sovereignty theory;

and (3) the effect on the administration of justice of a

retroactive application of the Waller case insofar as it

abrogates the dual sovereignty theory as it was applied

to city and state prosecutions.

It is SO ORDERED.

APPROVED FOR ENTRY.

FRANK W. WILSON

United States District Judge

20 -

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

v8.

WiuiaM S. NEIL, Warden, Tennessee State Penitentiary

ORDER—November 18, 1970

This case came on for further hearing upon this 17th

day of November 1970, whereupon counsel for the re

spondent moved the Court to be allowed additional time to

accumulate and present evidence with respect to the im-

pact of a retroactive application of the rule laid down in

Waller v. Florida, —— U.S. ——, 25 L. Ed. 2d 435.

Having heard argument of counsel thereon and considered

the objections of counsel for the plaintiff, the Court is

of the opinion that the further hearing in this case should

be continued until 4:30 p.m. upon November 30, 1970.

It is SO ORDERED.

APPROVED FOR ENTRY.

FRANK W. WILSON

United States District Judge

EXHIBIT 1

AFFIDAVIT

CLYDE M. SANDERS, having been first duly sworn

deposes and says:

That he is the duly elected, qualified and acting Clerk

of the Criminal Courts for Hamilton County, Tennessee.

That he has been associated with this office for more

than twenty-five years and has held his present position

for ten years.

That a part of his work as such Clerk is the handling

of all cases sent to the State Criminal Courts from the

municipal courts of the City of Chattanooga, Tennessee.

I would estimate that until recently fully ninety-five

(95%) percent of the State cases coming to the State

Courts have had accompanying ‘charges of violations of

City of Chattanooga municipal ordinances arising out of

the same acts upon which the State charges were

founded.

That for the most part the municipal ordinances in-

volved in these cases were either duplication of State

statutes, or lesser offenses included in the State laws.

Further this deponant saith not.

This 30th day of November, 1970.

/s/ Clyde M. Sanders

CLYDE M. SANDERS

Sworn to before me this

November 30th, 1970.

/s/ Virginia J. Johnson

. VIRGINIA J. JOHNSON

NOTARY PUBLIC

My Commission Expires:

October 8, 1972

EXHIBIT 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE,

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

v8,

W. S. NEIL, Warden, Tennessee State Penitentiary

AFFIDAVIT OF PHIL M. CANALE, JR.

I, Phil M. Canale, Jr., do hereby certify that I am

the District Attorney General for the 15th Judicial Cir-

cuit of the State of Tennessee (Shelby County) and have

been so since March 15, 1955.

Upon an examination by my office of the possible ef-

fects of holding United States Supreme Court case of

Waller vs. Florida, 38 L. W. 4263, April 6, 1970, retro-

active, I make the following observations to this Honor-

able Court. The Criminal Court Clerk’s Office of Shelby

County, Tennessee reports that an average of 5,000 True

Bills are returned by the Grand Jury of Shelby County

in each calendar year. The present misdemeanors pend-

ing in Shelby County, Tennessee as of this date is 2,015.

Based upon a survey made by sampling our our cases,

which we feel to be an accurate representation of all

our cases, we have found that there would be a minimal

effect on felonies which were pending both prior to

Waller vs. Florida, and presently pending if Wadler vs.

Florida were declared to be retroactive. This minimal

effect is due to the established way in which the bind-over

hearings were held in the City Court in this jurisdiction;

other counties could be adversely affected to a much

greater degree. However, with respect to misdemeanors

that are presently pending, we feel that approximately

15% of the present misdemeanors in Shelby County would

have to be dismissed if Waller vs. Florida was declared

23

to be retroactive and if there was no distinction made

between the very limited jurisdiction of the municipal

courts of Tennessee as compared to the municipal courts

of Florida. ,

/s/ Phil M. Canale, Jr.

PHIL M. CANALE, JR.

COUNTY OF SHELBY

STATE OF TENNESSEE

Came on before me this 30 day of October, 1970,

Phil M. Canale, Jr., whom I personally know to be Phil

M. Canale, Jr. and stated to me that the above informa-

tion is true according to his best knowledge, information

and belief.

/s/ Brian Jaff

BRIAN JAFF

Notary Public

My Commission Expires:

Jan. 10, 1972

PHIL M. CANALE, JR.

District Attorney General

Fifteenth Judicial Circuit of Tennessee

County of Shelby

Lioyd A. Rhodes Assistants

Executive Assistant Ewell C. Richardson

Jewett H. Miller

William D. Haynes J. Clyde Mason

Administrative Assistant Sam J. Catanzaro

Leonard T. Lafferty

John L. Carlisle Arthur T. Bennett

E. L. Hutchinson, Jr. Don D. Strother

Clyde R, Venson Don A. Dino

Criminal Investigators Joseph L. Patterson

Eugene C. Gaerig

Non Support Division Harvey Herrin

Earl E. Fitzpatrick John W. Pierotti

Assistant Attorney General James G. Hall

H. J. Beach James H. Allen

Investigator Thomas F. Graves

Phone 5384-9250 Thomas A, Stroud

T. E. Crawford

Billy F. Gray

Raymond §. Clift

Don F. Young

Leland M. McNabb

Shelby County Office Building

157 Poplar Avenue

Memphis, Tenn. 38103

Phone 901-584-9251

November 17, 1970

Honorable Edward Davis

District Attorney General

Courthouse

Chattanooga, Tennessee

\Dear General Davis:

In response to your request to check the list of the

840 names which you sent me, who are presently inmates

in the State Penitentiary from Shelby County to deter-

25

mine what percentage would be affected by a retroactive

ruling of the Waller decision, this is to advise that time

did not permit the checking of the entire list. We se-

lected at random 42 files from your list which is 5% of

the total, and feel that this figure is representative of

the total and reflects an accurate picture of the situation

in Shelby County.

_ Of the 42 files we checked, we found two (2) cases

which could be adversely affected by a retroactive ruling,

which indicates to me that we have approximately 40

serious felony cases involving people in the penitentiary

which would probably be subject to release if Waller is

held retroactive.

As I mentioned to you on the phone, we have been

fortunate in this jurisdiction in the manner in which

these cases have been handled in City Court as far as

the lack of placing city charges on these serious felony

cases. I feel you will probably find in other jurisdictions

in this state and other states, the percentage of cases

adversely affected by such a ruling would be much

greater.

Sincerely yours,

/s/ Phil M. Canale, Jr.

PHIL M. CANALE, JR.

District Attorney General

PMCjr/bk

EXHIBIT 3

AFFIDAVIT

I, Edward E. Davis, being first duly sworn do depose

and say:

That I am the duly qualified, elected and acting Dis-

trict Attorney General for the Sixth Judicial Circuit for

the State of Tennessee.

That at my request a survey of the Attorneys General

of the several states was made by the Honorable David

M. Pack, Attorney General for the State of Tennessee

of the possible impact on the administration of justice

in each of the jurisdictions if the holding of the United

States Supreme Court in the case of Waller v. Florida,

90 S. Ct. 1184 were to be given retroactive application.

That as of the date hereof responses from such survey

number twenty-seven. These responses are attached here-

to and filed herewith as exhibits #1-27 to this affidavit.

That there are approximately 267 inmates presently

in the Tennessee penitentiaries who were convicted in

Hamilton County, Tennessee.

That it is estimated that one-half of this number, or

133, were charged in situations arising in the geographi-

cal limits of the City of Chattanooga, Tennessee and con-

sequently were taken first through the municipal court of

the City of Chattanooga.

Based upon the affidavit of the Criminal Court Clerk

of Hamilton County, Tennessee that ninety-five (95%)

of the defendants coming from that municipal court have

in the past been charged with both State and City,

offenses, either the same or as lesser included offenses,

that there are now some 126 persons presently in the

penitentiary who could possibly be subject to release if

Waller v. Florida be given retroactive application.

That time has not permitted any examination of either

the defendants sentenced to the Hamilton County work-

house or jail on less serious felonies or misdemeanor

cases where the same dual prosecution situation has ex-

isted.

Further this deponant saith not.

/s/ Edward E. Davis

EDWARD E. DAVIS

District Attorney General

Sworn to and subscribed before me

this 80th day of November, 1970.

/s/ Virginia J. Johnson

VIRGINIA J. JOHNSON

NOTARY PUBLIC

October 8, 1972

MY COMMISSION EXPIRES

EXHIBIT 1

STATE OF ALABAMA

Office of Attorney General

Montgomery, Alabama 36104

November 12, 1970

[STATE SEAL]

MacDonald Gallion

Attorney General

R. Hunter Phillips

Executive Assistant

The Honorable David M. Pack

Attorney General of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

John G. Bookout

Deputy Attorney General

Assistant Attorneys

General

Charles H. Barnes

Richard F. Calhoun

David W. Clark

Paul T. Gish, Jr.

Leslie Hall

Lloyd G. Hart

Herbert H. Henry, III

Randolph G. Lurie

William N. McQueen

Gordon Madison

Joseph G. L. Marston, III

Robert E, Morrow

Tabor R. Novak, Jr.

William G. O’Rear

Jamie L. Pettigrew

Joseph V. Price, Jr.

Jasper B. Roberts

Bernard F. Sykes

Walter S. Turner

John C. Tyson, III

In regard to your inquiry concerning the impact of

retroactive application of the Waller case in Alabama,

I have contacted our prison officials to determine the

number of prisoners who might be held under similar

facts. I have been told by them that it would be prac-

tically impossible to make this determination and that

even if it could be made that there would be less than

a dozen people who would fall within the Waller facts.

29

Their thoughts on the number of possible individuals

involved are probably correct since even though techni-

cally possible double prosecutions of the type in Waller

are strongly discouraged.

I am sorry that I have not been able to give you any

positive information to use in your upcoming case.

Sincerely,

MACDONALD GALLION

Attorney General

By:

/s/ Joseph Victor Price, Jr.

JOSEPH VICTOR PRICE, JR.

Assistant Attorney General

EXHIBIT 2

[STATE SEAL]

Telephone 4 oon

ttorney General

708-S500 State of Illinois

160 North La Salle St.

Chicago 60601

November 19, 1970

The Honorable David M. Pack

Attorney General of the State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

I have your letter of October 29, 1970, requesting my

analysis of the effect of a decision making Waller v.

Florida, 397 U.S. 387 (1970) retroactive. In my opin-

ion, such a holding would have little practical effect in

Illinois.

As the Supreme Court recognized in Waller, Illinois

is one of the states which treats a single act as a possible

violation of both a state penal statute and a municipal

ordinance. Prior to Waller, each of these violations could

be separately tried and punished without violating the

concept of double jeopardy. See City of Evanston v.

Wazau, 364 Ill. 198, 4 N.E. 2d 78 (1986) ; City of Chica-

go v. Clark, 859 Ill. 374, 194 N.E. 587 (19385); City of

Chicago v. Berg, 48 Ill. App. 2d 251, 199 N.E. 2d 49

(1964) ; People v. Behymer, 48 Ill. App. 2d 218, 198 N.E.

2d 729 (1964).

The Illinois compulsory joinder statute [Ill. Rev. Stat.,

(1969), Ch 88 §8-8. Multiple Prosecutions for Same

Act] requires that several offenses established by the

same conduct of a defendant, if known to the proper

prosecuting officer at the time of commencing prosecu-

tion and within the jurisdiction of a single court, must

81

be prosecuted in a single prosecution. However, the

term “offense” is defined as a violation of a state penal

statute. Therefore, the compulsory joinder provision ap-

plies only to prosecution for violations under state law

and has no application to the situation treated in Waller.

Yet, the statute does indicate the prevailing philosophy

in Illinois that several criminal charges arising from the

same conduct shouJd be tried in a single prosecution.

In practice, a defendant usually, would be prosecuted

on the state charge if the act involved constitutes a more

serious offense or is an element of a more serious offense

than the municipal violation. Rarely would this prosecu-

tion be followed by a trial of the ordinance violation.

Therefore, while the decision in Waller has effected a

change in the Illinois law of multiple prosecutions, it has

not altered the practice generally followed prior to that

decision. Therefore, holding Waller retroactive would

have minimal effect other than to formalize the prior

Illinois practice.

Very truly yours,

WILLIAM J. SCOTT

Attorney General

State of Illinois

By /s/ James B. Zagel

JAMES B. ZAGEL

Assistant Attorney General

EXHIBIT 3

THE STATE OF COLARADO

Department of Law

Office of the Attorney General

Duke W. Dunbar 104 State Capitol John P. Moore

Attorney General Denver, Colorado 802038 Deputy

Attorney General

November 4, 1970

Honorable David M. Pack ~

Attorney General

State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

This office does not maintain sufficient records to advise

you to what effect the holding of Waller v. Florida would

have upon the administration of justice in the State of

Colorado.

Prosecutions are handled by local district attorneys who

do not_ come under our jurisdiction. Therefore, we are

not privy to any information pertinent to the prior

criminal records of persons convicted by the district

attorney.

Very truly yours,

/8/ John P. Moore

JOHN P. MOORE

Deputy Attorney General

EXHIBIT 4

[STATE SEAL]

THE DEPARTMENT OF LAW

State of Georgia

Atlanta

30334

Arthur K. Bolton 182 State Judicial Building

Attorney General Telephone: 525-0401

November 4, 1970

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

This is in reply to your letter inquiring about the im-

pact in Georgia if Waller v. Florida, 397 U.S. 387 (1970)

should be applied retroactively.

Georgia adheres to a preemption doctrine which denies

local governments the authority to prohibit by ordinance

that conduct which has been declared criminal by the

State Penal Code. Therefore, the Waller decision pre-

cluding both municipal and State trials for an identical

offense should have a minimal impact upon the adminis-

tration of the criminal laws of this State.

Very truly yours, “

/s/ Arthur K. Bolton

ARTHUR K. BOLTON

Attorney General

AKB:jg

34

. EXHIBIT 5

[STATE SEAL]

Address Reply to Cable Address:

“The Attorney General of Hawaii” AttGen

and Refer to

Initials and Number Bertram T. Kanbara

WHY :bys Attorney General

STATE OF HAWAII

Department of the Attorney General

Hawaii State Capitol

4th Floor

Honolulu, Hawaii 96818

November 6, 1970

David M. Pack, Esq.

Attorney General

State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Re: Waller v. Florida, 397 U:S. 387

Dear General Pack:

This is in response to your letter of October 29, 1970

inquiring as to the impact that giving the rule enunciated

in Waller v. Florida retroactive effect would have on the

administration of justice in our State.

The answer appears to be “none”.

In our State, the county legal offices handle all prosecu-

tions of both state statutes and county ordinances. The

Office of the Prosecuting Attorney of the City and

County of Honolulu (the County which has the bulk of

our population) could not recall any instance of separate

prosecutions of the same person for a violation of an

ordinance and for a violation of a statute growing out

- of the same acts.

Yours truly,

/s/ William H. Yim

WILLIAM H. Yu

Deputy Attorney General

State of Hawaii

EXHIBIT 6

[STATE SEAL]

STATE OF IDAHO

Office of the Attorney General

ns e Roboon Boise 83707

Attorney General November 3, 1970

‘The Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

I have received your letter of October 29, 1970, by

which you have asked me to anticipate the effect of a

possible retroactive application of Waller v. Florida.

In the first instance, I would suggest that to retro-

actively apply the Waller case would be to unduly burden

the administration of our criminal process. This is espe-

cially so in a state housing a great number of felonious

offenders who are first convicted of violating a local city

ordinance.

Unfortunately, the State of Idaho has not now, nor

during the past decade, confined an offender under the

circumstances posed by the Waller case. While, there-

fore, a retroactive application of Waller v. Florida will

not directly affect the Idaho criminal process, I am fully

aware and sympathetic toward those states which will be

inundated with writs of habeas corpus. In my opinion,

to crowd the already overcrowded court dockets by ap-

plying Waller retroactively, we will simply witness an

undesirable form of jurisprudential suicide.

I wish to thank you and if I may be of further service

in any way, please feel free to contact me.

Very truly yours,

/s/ Robert M. Robson

ROBERT M. ROBSON

Attorney General

86

[STATE SEAL]

Theodore L. Sendak

Attorney General

STATE OF INDIANA

Attorney General

Indianapolis

46204

November 4, 1970

The Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

In response to your request concerning the applicability

of Waller v. Florida, I am unable to give you a definite

answer. Apparently, the precise issue that was raised in

Waller has never been decided in this State.

I spoke with the head of adult corrections in the

Indiana Department of Corrections, and he stated that

he was unaware of any inmate who might be affected by

the Waller decision.

It is our feeling that if any Indiana inmate had been

committed under circumstances to which Waller would

be applicable, a Writ of Habeas Corups would have been

filed by this time. We have no such writs in our office.

If I may be of service in any other way, please advise.

Sincerely,

THEODORE L. SENDAK

Attorney General of Indiana

WILLIAM F. THOMPSON

Assistant Attorney General

/s/ Fred R. Spencer

FRED R. SPENCER

Law Clerk

EXHIBIT 8

[STATE SEAL]

James S. Ervin George G. West

Attorney General John W. Benoit, Jr.

Jon R. Doyle

Deputy Attorneys General

STATE OF MAINE

Department of the Attorney General

Augusta, Maine 04330

November 5, 1970

The Honorable David M. Pack

Attorney General of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

This will acknowledge receipt of your letter of October

29 concerning the retroactive effect of Waller v. Florida.

This office does not do all the criminal prosecution in the

State. The bulk of the criminal prosecution is handled

by the County Attorney in each of our 16 counties. How-

ever, I have never heard of any problem that has been

created by the Waller case. I doubt very much if any

prosecutor in the State has ever tried to prosecute a

case in the manner which was done in Florida.

Very truly ypurs,

/s/ George C. West

GEORGE C. WEST

Deputy Attorney General

88

[STATE SEAL]

Leon 8. Cohan

Deputy Attorney General

STATE OF MICHIGAN

Department of Attorney General

FRANK J. KELLEY

Attorney General

Lansing

48918

November 10, 1970

The Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37218

Dear General Pack:

In response to your letter of October 29, 1970, regard-

ing the impact of Waller v. Florida, 397 U.S. 387, if the

decision is held to be retroactive, I regret that I cannot

be helpful.

The information you seek would have to be found by

an examination of the files of more than 8,000 inmates

of our prison system and I know you will realize the

impracticability of doing this.

With best personal regard.

Yours very truly,

/s/ Frank J. Kelley

FRANK J. KELLEY

Attorney General

EXHIBIT 11

[STATE SEAL]

A. F. Summer

Attorney General

Department of Justice

Office of the Attorney General

Jackson, Mississippi 39205

November 3, 1970

Honorable David M. Pack, Attorney General

State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

In your letter of October 29, 1970, you state that you

are compiling a memorandum to the United States Dis-

trict Court for the Eastern District of Tennessee in sup-

port of your position that to apply Waller v. Florida,

897 U.S. 887 (1970) would have a disruptive effect

throughout the United States upon the administration

of criminal justice,

I am sure you noted in footnote 3 to the Court’s opinion

in Waller, the case of May vs. Town of Carthage, 191

Miss. 97 So. 2d 801 (1941) was cited. The holding of

the Mississippi Supreme Court in that case was, as

pointed out in Chief Justice Burger’s opinion in Waller,

to the effect that municipalities and the state are sep-

arate sovereign entities each capable of imposing punish-

ment for the same alleged crime. Waller now holds that

this is not so and that municipalities, being creatures of

the state, are regarded as governmental instrumentalities

created by the state and are not to be considered as

separate sovereign entities such as the States and the

United States.

40

I have discussed the possible effect of the retroactivity

of Waller with members of my staff, who have been in

the criminal [illegible]

Waller retroactive would probably have no effect what-

soever in Mississippi. It would be impossible to canvass

every municipality and county to determine if anyone

is presently serving a sentence where he was convicted

both for an offense against a municipality and against

the state, but it is safe to say that.there are probably

none. It has been very seldom that anyone in Mississippi

has been prosecuted both for an offense against a muni-

cipality and also against the state arising out of the

same factual situation.

You may be interested to know that, while Waller in-

volves a violation of a city ordinance and a state statute,

in Mississippi it is not necessary for the municipalities

to adopt ordinances, since under Section 3374-78 Missis-

sippi Code 1842 Recompiled all penal offenses under the

laws of the state which are misdemeanors are made of-

fenses against municipalities when committed within the

corporate limits.

I am sorry that I cannot give you any comfort from this

end of the line. When your memorandum has been com-

pleted I would appreciate a copy of it.

Sincerely,

/3/ A. F. Summer

A. F. SUMMER

Attorney General

AFS/dm

EXHIBIT 12

[STATE SEAL]

John C. Danforth

Attorney General

Offices of the

ATTORNEY GENERAL OF MISSOURI

Jefferson City

November 5, 1970

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

This will acknowledge receipt of your letter dated

October 29, 1970, which has been referred to me for

reply.

We have no available figures which would illustrate

the disruptive effect of a retroactive application of

Waller v. Florida. Frankly, I would imagine that those

persons who are incarcerated for serious offenses, who

prior to their state convictions were tried in a municipal

court, could be counted on both hands. This is just a

personal estimate and, frankly, we have no figures to

back it up.

One effect of Waller v. Florida has been to generate

some thinking, especially in. the urban areas, about a

common warrant office where all warrants for arrest

on prosecutions pending in municipal or state courts

would originate. Therefore, an easy check would be

available on prosecutions violative of the Waller deci-

sion.

42.

I am sure you are aware of the recent case of State

v. Fletcher, 8 CrL 1018 (10-23-70), which appears to

be a further extension of the Waller doctrine.

General Danforth sends his kindest regards and asked

me to reply on his behalf as he is recuperating from the

recent Senatorial race.

Respectfully,

/s/ Dale L. Rollings

DALE L. ROLLINGS

Chief Counsel

Criminal Division

EXHIBIT 13

State of Nebraska

DEPARTMENT OF JUSTICE

Clarence A. H. Meyer Lincoln

Attorney General 68509

November 3, 1970

Hon. David M. Pack

Attorney General of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

In reply to your October 29 letter requesting informa-

tion on the possible effect of a retroactive application of

Waller v. Florida, I am afraid that Nebraska cannot be

of much help to you. I cannot recall a situation of this

kind in the 20 years I have been here in the office. Fur-

ther confirmation that we have not had a case of this

kind arises from the fact that not a single penitentiary

prisoner has initiated a habeas corpus action based on

Waller, and they seem to get Supreme Court opinions,

and to use them, before we get the opinions.

Very truly yours,

/s/ Clarence

CLARENCE A. H. MEYER

Attorney General

EXHIBIT 15

[STATE SEAL]

THE STATE OF NEW HAMPSHIRE

Attorney General

Concord

Warren B. Rudman Assistant Attoneys General

Attorney General Robert W. Moran

Irma A. Matthews

William F. Cann Henry F. Spaloss

Deputy Attorney General Donald A. Ingram

David H. Souter

W. Michael Dunn

Thomas B. Wingate

Attorneys

John T. Pappas

Richard A. Hampe

Judith D. Mulligan

Donald W. Stever, Jr.

November 12, 1970

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

Attorney General Warren Rudman has instructed me

to answer your letter of October 29, 1970, with respect

to the question of the retroactive application of Waller

v. Florida.

We anticipate no difficulties whatever arising out of

the Waller decision and it is of no consequence in our

State whether the Waller — should be held to be

retroactive.

asunity yours,

/s/ Henry F. Spaloss

HENRY F’. SPALOSS

Assistant Attorney General

46

EXHIBIT 16

[STATE SEAL]

STATE OF NEW MEXICO

Office of the Attorney General

Department of Justice

James A. Maloney Gary O’Dowd

Attorney General Deputy Attorney General

Assistant Attorneys General

Leila A. Andrews

Frank N. Chavez

James C. Compton, Jr.

C. Emery Cuddy, Jr.

John A, Darden, III

Carl P. Dunifon

Thomas L. Dunigan

Ray H. Shollenbarger

Richard J. Smith

Mark B. Thompson, III

Thomas P. Whelan, Jr.

P. O. Box 2246

Santa Fe, N.M. 67501

November 4, 1970

The Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

You have asked whether the recent Supreme Court case

of Waller v. Florida, would have a significant impact upon

the administration of justice in the State of New Mexico

if this decision were made retroactive.

Although we are not able to tell you the number of per-

sons who. are now incarcerated in our state penitentiary,

for serious offenses, who prior to their state trial were

tried in a municipal court for violation of a local ordi-

47

nance, we assume that there are very many. This as-

sumption is based upon the fact that many of our munici-

palities have adopted as their criminal codes the State

Criminal Code and therefore have identical criminal of-

fenses as the State. We realize that a number of per-

sons in the penitentiary have been tried both in municipal

court and in our state court and that the retroactive

application of the Waller decision would require that

‘many of these individuals be released from the peni-

tentiary without any possibility of them being retried.

We feel that anything that you may do to prevent the

retroactive application of this decision will be very bene-

ficial to the State of New Mexico.

Sincerely yours,

/s/ Ray. Shollenbarger

RAY SHOLLENBARGER

Assistant Attorney General

RS/gr

48

[STATE SEAL]

STATE OF NORTH CAROLINA

Department of Justice

Robert Morgan

Attorney General

P. 0. Box 629

Raleigh

27602

8 November 1970

Honorable David M. Pack

Attorney General of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

This is to acknowledge receipt of your letter of October

29, 1970, addressed to Attorney General Robert Morgan,

inquiring as to the effect of Waller v. Florida, 397 U.S.

887 (1970), upon the administration of justice in the

State of North Carolina.

In North Carolina all criminal offenses are violation of

State law, and, therefore, a plea of former jeopardy

has always been sustained if the State subsequently at-

tempted to indict the individual for a felony if the

misdemeanor for which he was tried in the inferior

court was a lesser included offense. Our local ordinances

in this State deal with strictly local matters unrelated to

our criminal codes, ‘i.e, zoning violations, business per-

mits, etc., and we are unaware of any instances where

a statutory scheme such as that found in the State of

Florida and discussed by the Court in Waller can be

found in the State of North Carolina.

Therefore, we do not know of any individuals incar-

cerated in the State of Noxth Carolina who may be

‘49

affected by either a prospective or retroactive applica-

tion. of Waller inasmuch as we do not believe our sub-

stantive law contains the defect condemned in Waller.

Very truly yours,

ROBERT MORGAN

Attorney General

/s/ Jacob L. Safron

JacoB L. SAFRON

Assistant Attorney General

EXHIBIT 18

[STATE SEAL]

STATE OF NORTH DAKOTA

Helgi Johanneson

Attorney General

Bismark, North Dakota 58501

Paul M. Sand Telephone

First Assistant 224-2210

John E. Adams Maybelle Gulling

Gerald W. Vandewalle Charlotte Logan

Vance K. Hill Elsie J. Johnston

Lynn E. Erickson Secretaries

Robert P. Brady Susan Albers

Assistants Clerk

John R. Erickson

Auditor

November 5, 1970

The Honorable David M. Pack

Attorney General

State of ‘Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear Mr. Pack:

This is in response to your inquiry as to what effect

the retroactive application of Waller vs. Florida, 397

U.S. 387, 25 L Ed 2d 485 (1970) has on the State of

North Dakota.

As of this date, we are not aware of any proceedings

relying upon the above case for a reversal or dismissal

of a conviction.

At the time the opinion came out from the United

States Supreme Court, I mentioned to H. L. Holt, the

director of the League of Municipalities, the possible

! g

51

results of this case and that the cities should exercise

a greater discretion in determiing what type of cases

should be prosecuted under the municipal ordinances, par-

ticularly: if there was a possibility that the violation may

have been against the state law, for which a much greater

penalty can be imposed.

As of now [ have not received any feedback of any kind

indicating any problems with _the Waller vs. Florida

case. as

Yours truly,

/s/ Paul M. Sand

PAUL M. SAND

First Assistant

Attorney General

52

[STATE SEAL]

G. T. Blankenship

Attorney General

THE ATTORNEY GENERAL

OF OKLAHOMA

Oklahoma City, Okla. 78105

November 4, 1970

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 87219

Dear General Pack:

In response to your letter of October 29, 1970, the

members of this staff devoting their attention to criminal

matters, have carefully considered your request for our

observations on any effect in this State of retroactive ap-

plication of Waller v. Florida, 397 U.S. 387 [1970].

At the present we have no matters pending on appeal

which involve the problem presented by Waller, supra,

and are unable to recall any possible cases that may

confront us in the near future.

In consequence we thus are forced to say that we have

no basis at this time in this State of forming and ex-

pressing an opinion on the possible disruptive affect of

retroactive application of Waller, supra. However, retro-

active application of innovative U.S. Supreme Court de-

cisions on U. S. Constitutional questions in the criminal

field is one that has confronted this office upon frequent

occasions in the recent past. In each instance, retroactive

application of an innovative U. 8. Supreme Court decision

has been resisted by this office as having a serious affect

upon the administration of our criminal laws. We have

consistently opposed any retroactive application when that

problem has been presented.

58

We regret our inability to give you more specific in-

formation for your use in the U. S. District Court for

the Eastern District of Tennessee. This stems from the

fact that we have not as yet been confronted with this

specific problem here in this State.

Sincerely,

FoR THE ATTORNEY GENERAL

/s/ H. L. McConnell

H. L. MCCONNELL

Assistant Attorney General

54

{STATE SEAL]

Lee Johnson Diarmuid F. O’Scannlain

Attorney General Deputy Attorney General

DEPARTMENT OF JUSTICE

State Office Building

Salem, Oregon 97810

Telephone: (503) 364-2171

November 9, 1970

Honorable David M. Pack,

Attorney General of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Re: Retroactivity of Waller v. Florida

Dear General Pack:

I have no solid data to provide to you, however I am

able to give an impressionistic and fragmentary idea of

the effect of Waller v. Florida in Oregon.

The impact of the case is diminished by the existence

of ORS 169,160, which provides for discharge of in-

digents imprisoned for nonpayment of fine after 30 days

upon the filing of an oath. It is most frequently the

practice of our lower court judges to give either ‘sentences

or fines but seldom both. Therefore, I doubt very much

that Waller v. Florida will seriously affect the adminis-

tration of justice in the state of Oregon.

I would be interested in knowing the outcome of your

litigation.

Very truly yours,

/s/ Lee Johnson

LEE JOHNSON

Attorney General

LJ/JBT /js

EXHIBIT 21

[STATE SEAL]

THE ATTORNEY GENERAL

Or TEXAS

Austin, Texas 78711

Crawford C, Martin

Attorney General

November 12, 1970

Honorable David M. Pack

Attorney General of Tennessee

Supreme Court Building ~

Nashville, Tennessee 37219

Dear Mr. Pack:

Thank you for your recent letter which General Martin

referred, for research and reply, to me.

We regret very much to find that we can be of little

assistance to you in responding to your inquiry concern-

ing the case of Waller v. Florida, 397 U.S. 387 (1970).

After careful reflection on how to obtain the information

you desire, we are satisfied that the only accurate way

to obtain it would be to check the prison records of each

inmate presently incarcerated in the Texas Department

of Corrections. We have approximately 13,600 inmates

there, and have no way, other than by hand, to check

each inmate’s criminal history to determine whether he

had been convicted of a municipal ordinance prior to his

felony conviction, arising from the same set of facts.

If time permits, and if such information is crucial

to your presentation in the Federal District Court, we

will be pleased to consider undertaking such a study, as

is described above.

Yours very truly,

/s/ Jo Betsy Szebehely

(Mrs.) Jo Betsy Lewallen Szebehely

Assistant Attorney General

EXHIBIT 22

THE ATTORNEY GENERAL

[STATE SEAL]

Vernon B. Romney

STATE OF UTAH Attorney General

. : Robert B. Hansen

State Capitol * Salt Lake City Deputy Attorney General

DA 8-5261

November 17, 1970

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Re: Waller v. Florida, 397 U.S. 387 (1970)

Dear General Pack:

Attorney General Vernon B. Romney referred to me

your letter of October 29, 1970, wherein you inquired

as to the effect of a retroactive application of the case

of Waller v. Florida. I have endeavored to ascertain

what, if any, effect this would have within the State of

Utah.

I have discussed this with several judges, with the

gentlemen in our local legal defender office, and with

the record’s people at the state prison. Thus far, I have

not been able to find any cases where the retroactive ap-

plication of Waller would release any individuals from

our state prison.

Some time ago, there was a directive sent out to the

county attorneys to, in all cases where it is possible,

go for the biggest offense possible against an individual

and forget the smaller offenses, unless they were lesser

included offenses. For this reason, it has been the prac-

tice in this State to charge them with the felonies and

57

disregard any misdemeanors that could have been prose-

cuted in the justice’s or city courts. This has led to

what I now find the situation to be, that the retroactive

application of Waller would have very little, if any, im-

pact within the State of Utah.

Very truly yours,

/s/ Lauren N. Beasley

LAUREN N. BEASLEY

Chief Assistant Attorney General

58

EXHIBIT 23

James M. Jeffords Louis P. Peck, Assistant

Attorney General Governmental Affairs

Fred I. Parker, Deputy Ronald H. Bean, Assistant

Litigation G

John D. Hansen, Assistant

[STATE SEAL] Local Affairs

STATE OF VERMONT

Office of the Attorney General

Montpelier

05602

Tel. 802—223-2311, Ext. 482

November 18, 1970

Honorable David M. Pack

Attorney General

State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

Please pardon my delay in responding to your inquiry

of October 29th relative to the local effect of Waller v.

Florida, 397 U.S. 887 (1970).

To the best of my knowledge, all criminal quasi-

criminal (motor vehicle, etc.) matters are prosecuted

pursuant to State statute in Vermont. Hence, the prob-

lem of dual sovereignty, as between State and municipal

governments, is and has been non-existent in this juris-

diction. It might be noted, additionally, that municipal

courts have been abolished in Vermont and replaced

by ten State district courts. Justices of the Peace still

have a limited judicial function, but it is seldom exer-

cised and will, in all likelihood, be abolished in the near

future.

It was good to hear from you.

Most sincerely,

/s/ James M. Jeffords

JAMES M. JEFFORDS

Attorney General

EXHIBIT 24

COMMONWEALTH OF VIRGINIA

[STATE SEAL]

Andrew P. Miller D. Gardiner Tyler

Attorney General William P. Bagwell, Jr.

A. R. Woodroof

M. Harris Parker Wm. Luke Witt

Chief Deputy Attorney General Overton P. Pollard

Reno S. Harp, III F, Lee Davis, Jr.

Deputy Attorney General William M. Phillips

’ Troy G. Arnold, Jr.

Anthony F. Troy

Gerald L. Baliles

Edward J. White

Walter H. Ryland

Walter A. McFarlane

C. Tabor Cronk

Vann H. Lefcoe

Stuart H. Dunn

Robert A. Johnson

Theodore J. Markow

Wm. Thomas Lehner

Robert L. Simpson, Jr.

Assistant Attorneys General

Office of the Attorney General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

703—770-2071

November 16, 1970

Honorable David M. Pack

Attorney General of Tennessee

Nashville, Tennessee

Dear General Pack:

This is in response to your letter of October 29, 1970,

inquiring as to what effect a re ive application of

Waller v. Florida, 397 U.S. 387 (1970) would have on

the administration of criminal justice in the State of

ee

“If the same act be a violation of two or more

statutes, or of two or more ordinances, or of one

or more statutes and also one or more ordinances,

conviction under one of such statutes or ordinances

shall be a bar to a prosecution or proceeding under

the other or others. Furthermore, if the same act

be a violation of both a state and a federal statute,

& prosecution or proceeding under the federal statute

shall be a bar to a prosecution or proceeding under

the state statute.”

I might point out that under the first sentence of this

section, a mere proceeding or prosecution which does

not result in a conviction does not bar another prosecu-

tion in a state court. Wheeler v. Commonwealth, 180 vg.

8887 88 S.E. 2d 605; Dykeman v. Commonwealth, 201

Va. 807, 118 S.E. 2d 867.

I hope that this information has been of assistance

to you.

Sincerely yours,

/s/ Andrew P. Miller

ANDREW P. MILLER

Attorney General

19:47

EXHIBIT 25

[STATE SEAL]

OFFICE OF THE ATTORNEY GENERAL

Slade Gordon Attorney General

Temple of Justice Olympia, Washington 98501

November 9, 1970

Honorable David M. Pack

Attorriey General

State of Tennessee

Nashville, ‘Tennessee 37219

Dear General Pack:

This is response to your inquiry with regard to the

effect that retroactive application of Waller v. Florida,

897 U.S. 387, 25 L ed 2d 435 (1970) would have in the

state of Washington.

In Waller the court found that trial for a felony based

on the same act as an earlier municipal court convic-

tion for violation of a municipal ordinance constituted

double jeopardy, and set aside the felony conviction.

In 1926, the Washington State Supreme Court, in State

v. Tucker, 187 Wash. 162, 242 Pac. 363, held that an

acquittal in in the municipal court of a violation of a

city ordinance is not a bar to the subsequent prosecution

by the state for the same offense in violation of the state

law. You will note reference to this case in footnote

number 3, page 439, 25 Led 2d (Waller v. Florida,

supra,).

It appears that the Tucker case has remained the law in

this state over the years on this particular point. Thus,

it is quite possible that we may have persons serving

felony sentences which could be affected by retroactive

application of Waller. It would entail exhaustive research

to tell you the number involved, if, indeed, such records

are available.

If such a question is raised here in habeas corpus, and

the facts are determined to be in line, we would urge

prospective application only for the same reasons which

the court set forth in Linkletter, Johnson v. New Jersey,

and similar cases,

We hope our comments have been of some help to you.

Very truly yours,

FOR THE ATTORNEY GENERAL

/s/ Paul J.. Murphy

PAUL J. MURPHY

Assistant Attorney General

PJM :bw

68

EXHIBIT 26

[STATE SEAL] Robert W. Warren

Attorney General

THE STATE OF WISCONSIN

Department of Justice

Madison

: November 16, 1970

?

Honorable David M. Pack

Attorney General

Supreme Court Building

Nashville, Tennessee 37219

Dear General Pack:

>

This is in reply to your letter of October 29, 1970, in

which you inquire ing the impact of a holding that

Waller v. Florida is retroactive.

Notwithstanding Milwaukee v. Johnson (1927), 192

Wis. 585, 213 N.W. 335, it is not customary in Wisconsin

to prosecute offenses under both local ordinances and

the state criminal law. It would be my opinion, al-

though no statistical data are available, that the impact

of Waller v. Florida in this state is minimal if not

non-existent from the point of view of both retroactive

and prospective application.

The principal field in which local and state law over-

lap is that of traffic offenses, and whether the prosecu-

tion is brought under the state law or the local ordinance

generally depends upon whether the arrest is made by a

jocal or a state officer. Double prosecutions are, so far

as 1 know, virtually unknown.

Very truly yours,

/s/ Robert W. Warren

RoBERT W. WARREN

Attorney General

o4

EXHIBIT 27

[STATE SEAL]

OFFICE OF THE

ATTORNEY GENERAL James E, Barrett

State of Wyoming Attorney General

210 Capitol Building

Cheyenne, Wyoming 82001

November 4, 1970

The Hon. David M. Pack

Attorney General

State of Tennessee

Supreme Court Building

Nashville, Tennessee 37219 .

Dear General Pack:

This will acknowledge receipt of your letter of October

29, 1970, wherein you request information relative to the

effect of Waller v. Florida on criminal justice in the state

of Wyoming.

Due to the fact that all initial criminal prosecutions in

Wyoming are handled by the county and prosecuting at-

torneys of our twenty-three counties, it would be impos-

sible to determine how many inmates presently incar-

cerated in the Wyoming Penitentiary have been pre-

viously tried for the same offense in municipal or justice

of the peace court. It is my. feeling, however, that retro-

active application of Waller v. Florida would effect only

three or four inmates. Prosecutions in Wyoming are gen-

erally brought under the state criminal statutes in dis-

trict court without regard to violations of municipal

ordinances where the offense committed violates both.

I am in agreement that were conditions in Wyoming

like those of many other states, Waller v. Florida when

applied retroactively could have a far reaching effect on

criminal justice.

Sincerely,

/8/ Fred C. Reed

FRED C. REED

Assistant Attorney Genera

FCR/b

65

IN ‘HE UNITED STATES DISTRICT COURT

FoR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

—v3.—

WiLLiaM S. NEIL, Warden,

Tennessee State Penitentiary

MemoraNpuM—January 7, 1971

This js a proceeding upon a petition for a writ of

: corpus wherein the petitioner seeks to set aside

his CON;ictions and sentences in three cases, each entitled

States | Tennessee v. Samuel Ed Robinson, being Docket

Nos. 73/810, 103,811, and 103,812 in the Criminal Court

; milton County, Tennessee.

wan {Pears undisputed in this case that the petitioner

batter and convicted of three offenses of assault and

tanoog in violation of an ordinance of the City of Chat-

each ov and was fined $50.00 and assessed costs upon

jury cense. Thereafter, on September 26, 1962, a grand

the at. Hamilton County returned three indictments in

offenseve three cases, each charging petitioner with an

der, 0f assault with intent to commit first degree mur-

were he occurrences giving rise to the three indictments

1 States District Court for the Middle District

66

Tennessee upon grounds of double jeopardy. This action

was subsequently transferred to this court. By order dated

May 15, 1967, this Court denied the writ. See Samuel

Ed Robinson v. C. Murray Henderson, 268 F.Supp. 349

(E.D. Tenn., 1967). Basing its decision upon Palko y.

Connecticut, (1987) 802 U.S. 319, 58 S.Ct. 149, 82 L.Ed.

288, and the line of authority following the Palko deci-

sion, this Court concluded that the double jeopardy pro-

vision of the Fifth Amendment was not applicable to the

states and that no Federal Constitutional error was al-

leged in the petition. Petitioner appealed to the Sixth

Circuit Court of Appeals, which affirmed this Court’s

denial of the writ by order dated April 10, 1968.

The instant petition again raises the double jeopardy

argument. As in the prior petition filed in 1967, the

petitioner’s sole contention in the instant case is that he

was twice placed in jeopardy for the same offense and

that the convictions and sentences resulting from the

second trial are therefore invalid. The petitioner relies

upon the recently decided Supreme Court case of Waller

v. Florida, —— U.S. ——, 25 L.Ed.2d 485, 90 S.Ct. ——

(April 6, 1970). The facts, as stated above, being un-

disputed, the issue before the Court is one of law.

The facts in Waller v. Florida were as follows. J oseph

Waller, together with a number of other persons, re-

moved a canvas mural from the wall inside of the City

Hall in St. Petersburg, Florida. As a result of this act,

Mr. Waller was found guilty in municipal court of de-

struction of city property and disorderly breach of the

peace and was sentenced to 180 days in the county jail.

Subsequently, an information was filed against Mr. Wal-

ler charging him with grand larceny. Mr. Waller was

found guilty of the charge, was sentenced six months to

five years, less 170 days of the 180-day sentence imposed

by the municipal court. It was undisputed that the same

facts gave rise to the city and state charges placed

against Mr. Waller. In discussing the applicability of

the Fifth Amendment’s prohibition against double jeop-

ardy as applied to the States in Benton v. Maryland, 395

US. 784, 89 S.Ct. 2056, 23 L.Ed2d 707 (1969), the

Court specifically held as follows:

67

“We decide only that the Florida courts were in

error to the extent of holding that—

‘ . . even if a person has been tried in a mu-

nicipal court for the identical offense with which

he is charged in a state court, this would not

be a bar to the prosecution of such person in

the proper state court.’ ”

The Court concluded that the defendant’s second trial

pased on the same facts giving rise to the municipal

court trial constituted double jeopardy violative of the

Fifth and Fourteenth Amendments to the United States

Constitution.

The relevant factual situation in the instant case and

in Waller -are substantially identical. The only legal

problem presented is whether the holding in Waller

should be applied retroactively. The petitioner contends

that it should and in support of his legal position relies

upon certain footnotes in Waller v. Florida, supra, and

in Ashe v. Swenson, —— U.S. ——, —— L.Ed.2d ——

(1970). The respondent on the other hand relies upon

the criteria outlined in Stovall v. Denno, 888 U.S. 293,

87 S.Ct. 1967, 18 L.Ed.2d 1199, and Desist v. United

States, —— US. ——, —— S.Ct. ——, 22 L.Ed.2d 248

(1969), and contends that in accordance with these cri-

teria the decision in Waller should be applied prospec-

tively only.

In the original memorandum filed by the Court upon

September 22, 1970, this Court concluded after consid-

eration of the relevant cases upon the double jeopardy

question that:

Although there has never been a reasoned analysis

by the Supreme Court on the issue of retroactivity,

this Court can only conclude from the above review

of the cases that Benton v. Maryland and Waller v.

Florida should each be accorded fiflly retroactive ap--

plication.

In view of this conclusion the Court provided that a

judgment would enter setting aside the petitioner’s con-

victions and sentences.

68

The respondent filed a timely motion to reconsider,

Upon reconsideration of the original memorandum opin-

ion and cases upon the subject and for the reasons stated

in a memorandum filed upon October 27, 1970, this Court

concluded :

“. . . that the retroactivity of Waller v. Florida has

not been resolved by the Supreme Court and must

therefore be determined on the basis of the criteria

established by the Supreme Court in the cases of

Linkletter v. Walker, 381 U.S. 618 (1965) ; Stovall

v. Denno, 388 U.S. 298 (1967) ; and Desist v. United

States, 394 U.S. 244 (1969).”

ary hearing to afford

of retrospective ver-

an overruling decision certain

general principles have been clearly defined by the Su-

preme Court. The latest detailed pronouncement of these

principles is to be found in Desist v. United States, 394

U.S. 244, 22 L.Ed.2d 248, 89 S.Ct. 1080 (1969), wherein

Justice Stewart observed:

“Ever since Linkletter v. Walker, 381 U.S. 618, 629,

85 S.Ct. 1781, established that

spective effect’

tutional rules

Denno, 388

87 S.Ct. 196

purpose to be served by

extent of the reliance by

“ae

69

law enforcement authorities on the old standards,

and c) the effect on the administration of justice

of a retroactive application of the new standards.’ ”

Accordingly, “the accepted rule today is that in appro-

tata cases the Court may in the interest of justice

make the rule prospective.” See Linkletter v. Walker,

supra. Applying the criteria outlined in the Linkletter

case to the instant, case, this Court must look to the his-

tory and purpose of the Waller rule; any reliance placed

by the States upon the rule of law as it existed prior to

Waller; and the effect on the administration of justice

of a retrospective application of Waller.

In this regard the Court in Desist v. United States,

supra, further outlines the relative importance of each

criteria in weighing the relative merits of retroactivity.

“Foremost among these factors is the purpose to be

served by the new constitutional rule... . It is to

be noted also that we have relied heavily on the

factors of the extent of reliance and consequent bur-

den on the administration of justice only when the

purpose of the rule in question did not clearly favor

either retroactivity or prospectivity.”

The first appropriate inquiry ‘to be undertaken is an

examination of the history and purpose of the Waller

rule.» In this regard, the specific holding of Waller v.

Florida, supra, is as follows:

“We decide only that. the Florida courts were in

error to the extent of holding that—

‘ _. even if a person has been tried in a mu-

nicipal court for the identical offense with which

he is charged in a state court, this would not

be a bar to the prosecution of such person in

the proper state court.’”

The decision in the Waller case, holding that a municipal

court conviction and a state court conviction of the same

- offense constitutes double jeopardy and is in violation of

_ the Fifth and Fourteenth Amendments, is in turn based

_ upon the prior decision of the Supreme Court in the case

%

70

of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969), wherein the Court overruled Palko

v. Connecticut, supra, and held that the Fifth Amend-

ment prohibition against double jeopardy was made ap-

plicable to the states through the Fourteenth Amendment.

In Benton v. Maryland, supra, the Court stated:

“. . . [Wie today find that the double jeopardy pro-

hibition of the Fifth Amendment represents a fun-

damental ideal in our constitutional heritage, . and

that it should apply to the States through the Four-

teenth Amendment. Insofar as it is inconsistent with

this holding, Palko v. Connecticut is overruled.”

In examining the purpose of the Waller case it is well

to note the rationale, history and purpose of Benton v.

Maryland as outlined by Justice Marshall:

“The fundamental nature of the guarantee against

double jeopardy can hardly be doubted. Its origins

can be traced to Greek and Roman times, and it

became established in the common law of England

long before this Nation’s independence. See Bartkus

v. Illinois, 359 U.S. 121, 151-155, 3 L.Ed.2d 684,

705-707, 79 S.Ct. ~(1959, Black, J., dissenting).

As with many other ents of the common law, it

was carried into the jurisprudence of this Country

through the medium of Blackstone, who codified the

doctrine in his Commentaries. ‘[T]he plea of autre-

foits acquit, or a former acquittal,’ he wrote, ‘is

on this universal maxim of the common

law of England, that no man is to be brought into

jeopardy of his life more than once for the same

offense.’ Today, every State incorporates some form

of the prohibition in its constitution or common law.

As this Court put it in Green v. United States, 355

U.S. 184, 187-188, 2 L.Ed.2d 199, 204, 78 S.Ct. 221,

61 A.L.R.2d 1119 (1957), ‘[T]he 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 al-

lowed to make repeated attempts to convict an indi-

71

vidual for an alleged offense, thereby subjecting him

to embarrassment, expense, and ordeal and com-

pelling 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.’

This underlying notion has from the very beginning

been part of our constitutional tradition. Like the

right to trial by jury, it is clearly ‘fundamental to

the American scheme of justice.’ The validity of

petitioner’s. larceny conviction must be judged not

by the watered-down standard enunciated in Palko,

but under this Court’s interpretations of the Fifth

Amendment double jeopardy provision.”

Waller v. Florida is simply an expansion of the newly

announced ‘principles in Benton v. Maryland. In abro-

gating the “dual sovereignty” theory with regard to mu-

nicipal and state charges based upon the identical of-

fense, the Court relied upon the holding in Benton for

the proposition that the Fifth Amendment prohibition

against double jeopardy applied to the states. While

recognizing that successive prosecutions by state and fed-

eral governments had been held to be non-violative of

the Double Jeopardy Clause, since dual sovereignties are

involved [see Fox v. Ohio, 5 How. 410, 12 L.Ed. 213

(1847) ; Bartkus v. Illinois, 359 U.S. 121, 79. S.Ct. 676,

8 L.Ed2d 684 (1969); Abbate v. United States, 359

U.S. 187, 3 L.Ed.2d 729, 79 S.Ct. 666 (1969)], the Court

held these cases inapplicable in a situation where the

successive prosecutions were by municipal and state gov-

ernments, both arms of the same sovereignty. Rather,

in Waller the Court followed the rule previously estab-

lished in the case of Grafton v. United States, 206 US.

338, 51 L.Ed. 1084, 27 S.Ct. 749 (1907), wherein it had

been held that “a prosecution in a court of the United

States is a bar to a subsequent prosecution in a terri-

torial court (Philippine Islands), since both are arms

of the same sovereignty.”

Having pointed out the reliance placed in Waller upon

the prior decisions of Benton v. Maryland, supra, and

Grafton v. United States, supra, two observations are

_ appropriate.

72

One observation is that the retroactivity of the Benton

decision has been decided and that case has been held

to be “fully retroactive.” See footnotes in both Ashe y.

Swenson, —— U.S. ——, —— S.Ct. ——, 25 L.Ed.2d

469 (1970), and Waller v. Florida, supra. Further,

three circuits have considered the issue and have held

Benton to be fully retroactive. See Mulreed v. Kropp,

425 F.2d 1095 (C.A. 6, 1970); Booker v. Phillips, 428

F.2d 420 (C.A. 4, 1970); and Galloway v. Beto, 421 F.

2d 284 (C.A. 5, 1970). In the Mulreed case, supra, the

Sixth Circuit reasoned the issue of retroactivity as fol-

lows:

“We think this case (Benton) goes beyond the con-

cededly important consideration of the integrity of

the truth determining process; it goes to the very

quick of a very long and cherished heritage in the

administration of criminal justice, namely the some-

times extended deprivation of liberty as the price

for demanding successfully a trial process free of

constitutional infirmity. Therefore we conclude that

Benton applies retroactively and is controlling here.”

Although the retroactivity of the Benton decision is not

necessarily determinative of the issue presented in the

present case, that is, whether Waller v. Florida should be

accorded retroactive effect, it is obvious that the reason-

ing which accords retroactivity to Benton must be given

weighty consideration in determining the retroactivity of

Waller v. Florida.

A second observation appropriate at this point is that

Waller v. Florida overrules no previous federal judicial

precedent. Rather, it relies upon a reassertion of the

principles laid down in the 1907 decision of Grafton v.

United States, 206 U.S. 388, 51 L.Ed. 1084, 27 S.Ct. 749.

Accordingly, the Waller decision establishes no new fed-

eral constitutional interpretation except to the extent

that it may overrule some local or state court decision

to the contrary. :

When the foregoing two observations are jointly con-

sidered, they appear to be tantamount to a prior adjudi-

cation upon the issue now before the Court and to re-

73

quire that Waller v. Florida be given fully retroactive

effect. To the extent that the Waller decision asserts

the double jeopardy rule of Benton v. Maryland, the is-

sue of retroactivity has been adjudicated. To the extent

that the Waller decision asserts the rule of Grafton v.

United States to deny any dual sovereignty between a

state and its municipalities, no new federal’ constitu-

tional law is established and no former federal prece-

dent is overruled.

A consideration of the two remaining criteria for de-

termining the issue of retroactivity, that is, the reliance

placed by law enforcement officials upon a contrary rule

and the effect on the administration of justice of a retro-

active application, would appear to be precluded under

the foregoing discussion of Supreme Court decisions, for

their analysis is appropriate only where retroactivity

remains in question after a consideration of the initial

criteria. See Desist v. United States, supra.

It may be noted in this regard that Chief Justice

Burger in a footnote to his opinion in the Waller case

(see footnote #3) lists 21 states which currently treat

municipalities and the state as separate sovereigns \for

double jeopardy purposes. Obviously the State of Florida

may be added to this list; so, too, may the State of Ten-

nessee. See Mullins v. State, 214 Tenn. 366, 380 S.W.

2d 201 (1964) ; Greenwood v. State, 65 Tenn. 557 (1873).

While in a very real sense these state decisions are over-

ruled by the Waller case, the states cannot be said in

any sense to have relied upon a federal precedent in

establishing their rule, as the federal precedent of Graf-

ton v. United States was to the contrary, as pointed out

in the Waller decision.

Although an examination of the impact of the Waller

decision is precluded in accordance with the foregoing

discussion of the authorities, it may be noted that the

respondent has submitted certain data regarding this

impact, consisting of responses received from law en-

forcement authorities in the various jurisdictions previ-

ously following the dual sovereignty rule. Disregarding

any issue of admissibility of the data in its present form,

it may be noted that the responding officials from ten

74

states previously following the dual sovereignty rule ex-

pressed the opinion that the Waller decision would have

little or no effect on the administration of justice in

their state (Alabama, Illinois, Idaho, Mississippi, Mis-

souri, Nevada, Nebraska, Oregon, Wisconsin and Wyo-

ming). Four expressed the opinion that sufficient data

was not available to make an evaluation (Colorado, Min-

nesota, North Dakota and Oklahoma). And no response

was received from seven states (Alaska, Iowa, Kansas,

Louisiana, Ohio, South Dakota and Florida). Only the

responses from two states (Tennessee and Washington)

expressed the opinion that there would be a substantial

effect on the administration of justice by a retroactive

application of the Waller decision. Except upon the local

level within this jurisdiction, the data submitted does

not appear to satisfactorily establish a preference either

for or against retroactivity.

A judgment will accordingly enter setting aside the

petitioner’s convictions and sentences in Criminal Docket

Nos. 103,810, 103,811, and 103,812 in the Criminal Court

for Hamilton County, Tennessee, and the petitioner will

be forthwith released from custody by reason of the said

convictions and sentences; PROVIDED, however, that re-

lease of the petitioner will be stayed for a period of ten

(10) days following the entry of the judgment on this

opinion to permit the respondent time within which to

elect whether he shall take an appeal herein or seek any

further stay from the appellate court. Should no appeal

be filed within ten days, the petitioner will be forthwith

released without further conditions. upon his release.

Should an appeal be filed within ten days, then, pursuant

to Rule 23(c), Federal Rules of Appellate Procedure,

the petitioner, as a condition to his release, will be re-

quired to file a bail bond in the sum of $1,000.00 with

good and sufficient surety thereon, such bond to be re-

turnable to this Court and conditioned in the usual form.

/3/ Frank W. Wilson

United States District Judge

75

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

Civil Action No. 5887

~ SamueL Ep ROBINSON

v8.

WruaM S. NEIL, Warden,

Tennessee State Penitentiary

Orper—January 7, 1971

This is a proceeding upon 4 petition for a writ of

habeas corpus. The petitioner, Samuel Ed Robinson, avers

that he is being illegally held in confinement by the State

of Tennessee and seeks to set aside his convictions and

sentences in three state court cases, each entitled “State

of Tenmessee v. Samuel Ed. Robinson,” and being Dock-

ets #108,810, #103,811, and #108,812 in the Criminal

Court- for Hamilton County, Tennessee. The petitioner

was indicted in each of the aforesaid state court cases

for assault with intent to commit murder and entered

pleas of guilty thereto and was sentenced to two con-

. secutive sentences of two to ten years and one consecu-

tive sentence of three to five years. It is averred by the

petitioner that prior to his state court indictments and

convictions in the three cases here under attack the peti-

tioner had previously been tried and convicted for three

offenses of assault and battery in violation of an ordi-

nance of the City of Chattanooga, Tennessee, the three

municipal court convictions having arisen out of the oc-

currences giving rise to the three state court convictions.

The petitioner’s sole contention is that, in accordance

with the recent decision in the case of Waller v. Florida,

—_— US. ——, 2 LEd.2d 485, 90 S.Ct. —— (April

6, 1970), he was twice placed in jeopardy for the same

offense in violation of the Fifth and Fourteenth Amend-

ments of the United States Constitution and that he is

- accordingly entitled to have his three aforesaid state

76

court convictions set aside and to be released from cus-

tody thereunder.. An answer was filed on behalf of the

respondent conceding the correctness of the petitioner’s

allegations regarding his convictions in both the munici-

pal court and in the state court cases, but denying that

the state court convictions were in violation of the Fifth

and Fourteenth Amendments of the Federal Constitution

as those amendments were interpreted at the time of

the petitioner’s three state court convictions (1962), and :

further denying that the recent (1970) decision to the

contrary in the case of Waller v. Florida, supra, should

be given retroactive effect so as to render the petitioner's

convictions invalid. All facts in regard to the petition-

er’s convictions in both the municipal and the state court

having been admitted and an evidentiary. hearing having

been conducted upon all matters relating to the issue of

whether retroactive effect should be given to the decision

in the case of Waller v. Florida, supra, the Court is of

the opinion that the decision in the case of Waller v.

Florida must be given retroactive effect, all for the rea-

sons set forth in an opinion filed herein, and that the

convictions and sentences of the petitioner in the state

court here in issue must be set aside and the petitioner

released from custody thereunder.

It is accordingly ORDERED that the convictions of

Samuel Ed Robinson in the three cases of State of Ten-

nessee v. Samuel Ed Robinson, Dockets #103,810, #103,-

811, and #103,812 in the Criminal Court for Hamilton

County, Tennessee, are void and of no further force or

effect. It is FURTHER ORDERED that the said Samuel

Ed Robinson be forthwith released from any custody by

reason of the aforesaid state court convictions; PRO-

VIDED, however, that the release of Samuel Ed Robin-

son pursuant to this order be stayed for a period of ten

(10) days following the entry hereof to permit the re-

spondent time within which to elect whether he shall

take an appeal herein or seek any further stay from the

appellate court; and PROVIDED FURTHER that should

appeal be filed within ten (10) days of the entry

order, pursuant to Rule; 23(c), Federal R

of Appellate | ure, the petitioner, as a condition of

om |

717

his release, will be required to file a bail bond in He

of $1,000.00 with good and sufficient surety thereon,

to be returnable to this Court and to be con-

in the usual form; and PROVIDED FURTHER

should no appeal be filed within ten (10) days of

the entry of this order the petitioner will be forthwith

without further conditions upon his release, but

subject to any further orders hereinafter entered in

this cause. :

APPROVED FOR ENTRY.

s/ Frank W. Wilson

United States District J udge

78

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON, PETITIONER

vB.

WiuuiaM S. NEIL, Warden

Tennessee State Penitentiary, RESPONDENT

NOTICE OF APPEAL

Notice is hereby given that William S. Neil, Warden,

respondent in the above named action, hereby appeals to

the United States Court of Appeals for the Sixth Cir-

cuit from the order of the District Court setting aside the

State convictions and sentences of petitioner and releas-

ing him from custody of Tennessee authorities, entered

in this action on the 7th day of January, 1971.

/s/ Edward E. Davis

EDWARD E. DAVIS

District Attorney, General

Room 305 Courthouse lad

Chattanooga, Tennessee 37402

Of Counsel for Respondent.

1

NITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 71-1138

w

\MUEL Ep. ROBINSON, PETITIONER-APPELLEE,

vs.

‘BEFO.

WILLIAM S. NEIL, Warden, Tennessee

tate Penitentiary, RESPONDENT-APPELLANT.

APE: PHILLIPS, Chief Judge, PECK, Circuit

the E: Judge and CECIL, Senior Circuit Judge.

TH) JUDGMENT

the USAL from the United States District Court for

of Teitern District of Tennessee.

ON; CAUSE came on to be heard on the record from

order‘ted States District Court for the Eastern District

of isessee and was argued by counsel.

It XONSIDERATION WHEREFOR, It is now here

cover and adjudged by this Court that the judgment

itemisaid District Court in this cause be and the same

gaid Dy reversed.

En further ordered that Respondent-Appellant re-

‘rom Petitioner-Appellee the eosts on appeal, as

«d below, and that execution therefor issue out of

istrict Court.

red by order of the Court.

/s/ James A. Higgins

JAMES A. HIGGINS

Clerk

A True Copy.

Attest:

/s/ James A. Higgins

- James A. HIGGINS

Clerk

NONE

j

fee) —

ng —i

‘otal | |

No. 71-1138

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SAMUEL ED ROBINSON, PETITIONER-APPELLEE,

Ve

WILLIAM §S. NEIL, Warden, Tennessee

State Penitentiary, RESPONDENT-APPELLANT.

ON APPEAL from the United States District Court for the

Eastern District of Tennessee, Southern Division.

Decided and Filed December 10, 1971.

Before: PHILLIPS, Chief Judge, PECK, Circuit Judge,

and CEcIL, Senior Circuit Judge.

PECK, Circuit Judge. The sole issue presented by this

appeal is whether the recent United States Supreme Court

decision, Waller v. Florida, 397 U.S. 387 (1970), de

claring an end to the “dual sovereignty” theory with

respect to criminal prosecutions by the States, should

be accorded retroactive application. That decision, herein-

after discussed in detail, reversed a state court judgment

of conviction based on an offense which had been the

basis of an earlier municipal court conviction. The Dis-

trict Court for the Eastern District of Tennessee granted

appellee Robinson’s petition for a writ of habeas corpus

and held that Waller should be applied retroactively.

Robinson v. Neil, 320 F. Supp. 894 (E.D. Tenn. 1971)

The facts pertaining to the instant action are not com-

plicated. In 1962, appellee was tried and convicted in the

municipal court of three assault and battery offenses in

violation of a Chattanooga, Tennessee ordinance, and was

fined $50.00 and. wag for each offense. 1 crags he

as named in indictments assault with

tent to com first egree mi ra ing out of the

same facts resulting i the muni ipall convictions. Fol-

81

lowing arraignment in the state court of general juris-

diction, he pled guilty to each charge and received two

consecutive sentences of two to ten years and one con-

secutive sentence of three to five years. He is presently

confind in the Tennessee State Penitentiary, pursuant to

the state court convictions.

In July, 1966, appellee filed a petition for writ of

habeas corpus in the Criminal Court of Davidson County,

Tennessee, contending that the state court convictions

violated the double jeopardy guarantee in that they

stemmed from the same facts and circumstances as his

municipal court convictions. The petition was denied

by thé Criminal Court of Davidson County and the

denial was affirmed by the Tennessee Supreme Court.

In March, 1967, he filed a petition for habeas corpus

relief in the District Court, advancing the double jeop-

ardy argument. That court denied the petition on the

ground that under Palko v. Connecticut, 302 U.S. 319

(1987), the Fifth Amendment double jeopardy, provision

was not applicable to the States through the Fourteenth

Amendment. Robinson v. Henderson, 268 F. Supp. 349

(E.D. Tenn. 1967), aff'd, 391 F, 2d 933 (6th Cir. 1968).

This court affirmed that determination - by order dated

April 10, 1968.

Soon thereafter, Palko v. Connecticut, supra, was over-

ruled by the Supreme Court in Benton v. Maryland,

395 U.S. 784 (1969), which held that the Fifth Amend-

ment double jeopardy provision is applicable to the States

through the Fourteenth Amendment. With Benton as

precedent, the Supreme Court granted certiorari in

Waller v. Florida, supra, to test “the asserted power of

[both a municipal court and a state court] within one

State to place [a person] on trial for the same alleged

crime.” 397 U.S. at 390. As previously indicated, Wal-

ler held such multiple prosecutions to be violative of the

Fifth Amendment, which leads us to the present case.

In appellee’s petition to the District Court, he stated

that he had been tried and convicted by both the City of

Chattan and the State of Tennessee for the same

offense, ad on authority of Waller, requested that his

state conviction be ag iia t however, left

| iY

| {

; rationale of our decision in Mulreed v. Kroc

82

open the question of whether the rule announced therein

is to be given retroactive effect, leaving us free to de

cide that issue on its merits.

The Benton decision making the double jeopardy pro-

vision applicable to the States has been given full retro.

activity. The Supreme Court stated in a footnote in

Ashe v. Swenson, 397 U.S. 486 (1970), decided the same

day as Waller, that: “There can be no doubt of the

‘retroactivity’ of the Court’s decision in Benton v. Mary-

land. In North Carolina v. Pearce, 395 U.S. 711, de

cided the same day as Benton, the Court unanimously

accorded fully ‘retroactive’ effect to the Benton doctrine.”

897 U.S. at 437, n. 12 Furthermore, this court reached

the identical conclusion in Mulreed vy. Koop, 425 F. 2d

1095 (6th Cir. 1970). See also, Booker v. Phillips, 428

F. 2d 420 (4th Cir. 1970); and Galloway v. Beto, 421

F. 2d 284 (5th Cir. 1970).

In finding retroactivity of the Waller rule in the in-

stant case, the District Court placed great weight on the

rationale of Benton and the rationale which was per-

suasive in making Benton retroactive. The District

Judge quoted a passage from Mr. Justice Marshall’s opin-

ion in Benton, which is illustrative of the long and

cherished heritage enjoyed by the double jeopardy guaran-

tee in our system of justice. Robinson v. Neil, supra,

820 F. Supp. at 897. The Court then made two observa-

tions: (1) “(T]he retroactivity of the Benton decision

has been decided and that case has been held to be ‘fully

retroactive.’,” and (2) “Waller v. Florida overrules no

previous federal judicial precedent.” From this, the

Court concluded: “When the foregoing two observations

are jointly considered, they appear to be tantamount to

a prior adjudication upon the issue [of retroactivity] and

to require that Waller v. Florida be given fully retro-

active effect.” Robinson v. Neil, supra, 320 F. Supp.

at 898. While we agree that the purpose of the Waller

+The Court also stated that Benton has full retroactivity in a

footnote in Price y. Georgia, 398 U.S. 328, 330-81, n. 9 (1970).

i

* Eventhough the Supreme Court has never given its rationale

for making Benton retroactive, the Distri Court relied upon the

D, supra, 425 F.2d 1095.

\

83

rule is decisive of the issue of retroactivity in the present

case, in our opinion the District Court herein was un-

duly swayed by the history and purpose of the double

i y guarantee applied to test Waller, rather than

In Johnson v. New Jersey, 384 U.S. 719 (1966), the

Supreme Court established that the test of retroactivity

is concerned with the purpose of the specific rule under

consideration, rather than with the particular constitu-

tional right involved:

“We here stress that the choice between retroactivity

and nonretroactivity in no way turns on the value of

the constitutional guarantee involved.

* *- * *

“We also stress that the retroactivity or non-retro-

activity of a rule is not automatically: determined by

the provision of the Constitution on which the dic-

tate is based * * * [W]e must determine retro-

activity ‘in each case’ by looking to the particular

traits of the specific ‘rule in question.” 384 US.

at 728. (Emphasis supplied.)

With this in mind we return to Waller. Petitioner,

Joseph Waller, Jr., was arrested and charged in St.

Petersburg, Florida, with violation of two city ordinances

for taking a mural from the St. Petersburg City Hall

and carrying it through the streets in a dama con-

dition. He was found guilty on hoth charges in the St.

Petersburg Municipal Court and ‘was sentenced to 180

days imprisonment. He was then tried and convicted

on a charge of grand larceny for the same acts by the

State of Florida and received a sentence of six months

to five years, less 170 days of the 180 day municipal

sentence, °

Waller appealed to the District Court of Appeal of

Florida and that court upheld each of the convictions

on the ground that under Florida precedent, trial and

conviction for the same offense in both a municipal court

and a state court does a i ee double jeopardy.

_ Following denial of certiordri by the Florida Supreme

i

“4

Court, the United States Supreme Court granted cer-

tiorari and reversed his state court convictions.

In the Supreme Court, the State of Florida contended

that municipalities and the State are separate sovereigns,

permitting each to punish persons for the same crime.

Florida argued that since the Supreme Court ruled in

Bartkus v. Illinois, 359 U.S. 121 (1959), and Abbate

v. United States, 359 U.S. 187 (1959), that successive

prosecutions by a state court and a federal court for the

same crime are constitutionally permissible as punish-

ment by separate sovereigns, the same result should fol-

low for the municipality and the State. The Supreme

Court rejected Florida’s argument, indicating that such

reliance upon Bartkus and Abbate and their predecessor,

Fox v. Ohio, 5 How. 410 (1847), was erroneous. The

Court cited Reynolds v. Sims, 877 U.S. 533 (1964), for

the proposition that municipalities have never been con-

sidered separate sovereignties from the State, but rather

are political subdivisions thereof. The Court stated:

“(The proper analogy] is to be found in the relation-

ship between the government of a Territory and the

Government of the United States. The legal con-

sequence of that relationship was settled in Grafton

v. United States, 206 U.S. 383 (1907) where [it was]:

held that a prosecution in a court of the United

States is a bar to a subsequent prosecution in a ter-

ritorial court, since both are arms of the same sov-

ereign.” 397 U.S. at 393.

Thereinafter, the Waller Court concluded:

“Thus Grafton, not Fox v. Ohio, supra, or its progeny,

Bartkus v. Illinois, supra, or Abbate v. United

States, supra, controls, and we hold that on the basis

of the facts upon which the Florida District Court

of Appeal relied petitioner could not lawfully be

tried both by the municipal government and by the

State of Florida. In this context a ‘dual sovereignty’

theory is an anachronism, and the second nnn con-| |

_ Stituted double jeopardy violative of the Fifth and |

_ Fourteenth Amendments to the United States Con-

| _ stitution.

4

85

“We decide only that the Florida courts were in error

to the extent of holding that—

‘even if a person has been tried in a municipal court

for the identical offense with which he is charged

in a state court, this would not be a bar to the

rosecution of such person in the proper state court.’

397 U.S. at 394-95.

- From this, it is’ readily apparent that the purpose of

the Waller rule is to put an end to successive prosecu-

tions by municipal and state governments based on the

game offense and to establish for purposes of criminal

rosecutions or whatever, that municipalities are political

double jeopardy guarantee, either constitutional, statu-

tory or common law (Mulreed v. Kroop, supra, 425 F. 2d

them permitted multiple prosecutions by municipalities

and the State at the time of its decision. 397 U.S. at

391, n. 3. Thus, Waller simply compelled the States to

abandon the long tolerated practice of successive prosecu-

y. United States, 394 U.S. 244 (1969), the Supreme

Court stated that “Foremost among [the Linkletter]

factors is the purpose to be served by the new constitu-

tional rule.” 394 U.S. at 249. The Court in Desist fur-

ther stated “* * * we have relied heavily on the factors

of the extent of reliance and consequent burden on

the administration of justice only when the purpose of

the rule in question did not clearly favor either retro-

— activity or prospectivity.” 394 U.S. at 251.

| In both Linkletter and Desist, which involved the retro-

activity of evidentiary exclusionary rules under the Fourth

Amendment, the Supreme Cou

+4 | i

purpose of the new rules was to act as a deterrent to

illegal police action and that such purpose would not be

furthered, nor would past misconduct be corrected by

releasing all the prisoners whose convictions were not in

accordance with the Fourth Amendment. 394 U.S. at 249,

The prisoners involved, though victims of a constitutional

violation, were admittedly guilty and the purpose of the

rule would not be served by their release. 381 U.S. 637.

In the most recent Supreme Court decisions on retro-

activity, Williams v. United States, and Elkanich vy.

United States, 401 U.S. 646 (1971), involving the retro-

activity of Chimel v. California, 395 U.S. 752 (1969),

under the Fourth Amendment and Mackey v. United

States, 401 U.S. 667 (1971), involving the retroactivity

of Marchetti v. United States, 390 U.S. 39 (1968), and

Grosso v. United States, 390 U.S. 62 (1968), under the

Fifth Amendment, the Court reiterated Linkletter and

Desist, stating that the relevant inquiry is whether the

rule is aimed at the fundamental fairness of the result

of trials or is designed “to serve other ends.” Williams

v. United States, supra, 401 U.S. at 653. The Court

stated :

“The petitioners in both Linkletter and Desist were

convicted in proceedings that conformed to all then-

applicable constitutional norms. In both cases the

government involved had a concededly guilty de-

fendant in custody and substantial unsatisfied in-

terests in achieving with respect to such defendant

whatever deterrent and rehabilitive goals underlay

its criminal justice system.

+. * * *

“(T]he authorities violated neither of petitioner’s

rights either before or at trial. No claim was made

that the evidence against them was constitutionally

insufficient to prove their guilt.” 401 U.S. at 654,

656. 3

i

}

87

attack by the new rule. The occurrence of multiple

ons in the context of the instant case did not

result in the imprisonment of concededly innocent people.

Thus, we can see no good reason for the adoption of a

rule which would free persons subjected to such prosecu-

tions in the past. If this were done, the convictions for

relatively minor offenses carrying relatively, minor pen-

alties would be left standing, while convictions for the

far more serious offenses ing far more severe penal-

ties would be overturned on a wholesale basis. Indeed,

an injustice would be worked on the citizens of those

States if we were to deny to the States the opportunity

to exact whatever rehabilitive measures have been deemed

roper for the convicted persons - involved.

We conclude that the purpose of Waller will be prop-

erly served by granting the new rule prospective effect

only. The States were mandated by that decision to re-

vamp their criminal laws and procedures to conform with

the constitutional requirements pursuant to the double

jeopardy guarantee. This is all that is needed to imple-

ment sufficiently the new rule insuring abolition of the

“dual sovereignty” theory, and its resulting allowance

of multiple prosecutions.

In light of the foregoing, we need not discuss the

remaining two factors, reliance on the old rule and effect

on the administration of justice of retroactive application

of the new rule. However, these factors too favor non-

retroactivity and since they are closely related to the first

factor, some comment on them is appropriate.

On reliance, we note first that until Waller the Su-

preme Court had never decided whether multiple prosecu-

tions by a municipal court and the state court constitute

double jeopardy. If the States were relying solely on

Palko v. Connecticut, supra, ‘holding the double jeopardy

guarantee inapplicable to the States, such reliance would

appear to have been unjustified. See Mulreed v. Kroop,

supra, 425 F. Supp. at 1098-99. | But, the ‘States were

also relying upon th “dual sovereignty” analogy between

the municipal-state \relationship and I; tate-federal re-

f 4 ly

88

lationship expounded in Waller. See €.g., Thiesen y,

McDavid, 34 Fla. 440, 16 So. 821 (1894). This reliance

proved unfounded, yet it cannot be said that it was

clearly unjustified. As recently as 1967, a Louisiana

District Court in Louisiana ex rel. Ladd v. Middlebrooks,

270 F. Supp. 295 (E.D. La. 1967), upheld multiple

prosecutions by municipalities and the State based on

the “dual sovereignty” analogy to the state-federal re.

lationship.

Other theories have been advanced to justify multiple

prosecutions. See Note, 68 MICH. L. REV. 836, 388 (1969),

These theories argue, for example, that municipal offenses

are too petty to be considered criminal prosecutions or

that municipal interests and state interests are sufficiently

different in their purposes as to require successive prose-

cutions. Though each of the theories may have been

opposed by better reasoned arguments, the lack of federal

law in this area prior to Benton and Waller left them

open for some consideration and support.

As for the impact on the administration of justice

by according Waller retroactivity, the District Court

herein stated that at least two States (Tennessee and

Washington), reported in a survey that they would be

substantially effected and seven other States (Alaska,

Iowa, Kansas, Louisiana, Ohio, South Dakota, and

Florida), failed to report what effect. it would have on

them. Robinson v. Neil, supra, 820 F. Supp. at 899.

With ‘nine States possibly realizing a substantial effect

and many others permitting multiple prosecutions, we

think that, without more positive data, nonretroactivity

is favored. In Tehan v. United States ex rel. Scott, 382

U.S, 406 (1966), the Supreme Court found nonretro-

activity to be favored even though only six States were

involved and data was not available to determine the

actual number of cases effected within those six States.

882 U.S. at 417-18.

89

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

Civil Action No. 5887

SAMUEL ED ROBINSON

vs.

WriAM S. Ne, Warden, Tennessee State Penitentiary

ORDER ON MANDATE

The respondent, William S. Neil, Warden, having ap-

pealed to the United States Court of Appeals for the

Sixth Circuit, from an order entered in this cause on

January 7, 1971.in which the convictions of petitioner

SAMUEL ED ROBINSON in three cases, all styled State

of Tennessee Vv. Samuel Ed Robinson, Docket numbers

103810, 108811 and 103812 in the Criminal Court for

Hamilton County, Tennessee were declared by this court

to be void and of no further force and effect; and that

the said SAMUEL ED ROBINSON be forthwith released

from any custody by reason of the aforesaid state court

convictions; and further providing that. should an appeal

be taken from such order within ten (10) days then

petitioner, as a condition of his release would be required

to file a bail bond in the amount of $1,000.00 with good

and sufficient surety thereon returnable to this Court and

conditioned in the usual form; and the said Court hav-

ing entered its order of judgement on December 10, 1971,

which was issued as mandate on January 5, 1972 and

filed by the Clerk on January 10, 1972, wherein it was

ordered that the judgement of the District Court was

reversed.

NOW, THEREFORE, upon the mandate of the United

for the Sixth Circuit, IT IS

\ ent of\the District Court

get out in its order in this \case January 7, 19’

be, and it hereby is, revers i

a - j \

{

3

IT Is FURTHER ORDERED that the convictions

heretofore set out by docket numbers in the state court

be, and thay Reve ere reinstated: and declared to be

in full force and effect.

IT IS FURTHER ORDERED that if petitioner has

not heretofore been released by the respondent under the

former order of this court that he will not hereafter

be released by reason of such order. If petitioner has

been released by virtue of said order under any of the

conditions and provisions therein made for bail bond, that

such bond shall be, and hereby is, cancelled and revoked

and petitioner will immediately be returned to the cus-

tody of respondent.

APPROVED FOR ENTRY

/s/ Frank W. Wilson

FRANK W. WILSON

United States District Judge

CORRECT:

/s/. David Pack

Davip Pack

For Respondent-Appellant

David Pack—Attorney General

State of Tennessee

/s/ Edward E. Davis

EDWARD E. DAVIS

For Respondent-Appellant

District Attorney, Of Counsel

/s/ James D.. Robinson

JAMES D. ROBINSON :

For Petitioner-Appellee

91

SUPREME COURT OF THE UNITED STATES

No. 71-6272

SAMUEL ED ROBINSON, PETITIONER

v.

WILLIAM S. NEIL, Warden

On petition for writ of Certiorari to the United States

Circuit’ Court of Appeals for the Sixth Circuit.

On consideration of the motion for leave to proceed

herein in forma pauperis and of the petition for writ

of certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted ; and that the petition for writ of certiorari be,

and the same is hereby, granted.

May 15, 1972

SX WU. 8. GOVERNMENT PRINTING OFFICE; 1972 acess! 860

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-6272

SAMUEL ED ROBINSON,

Petitioner,

v.

WILLIAM S. NEIL, Warden,

Tennessee State Penitentiary,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

JERRY H. SUMMERS

206 Professional Building

& Chattanooga, Tennessee 37402

JAMES D. ROBINSON

Goins, Gammon, Baker & Robinson

700 Hamilton National Bank Bldg.

Chattanooga, Tennessee 37402

Co-Counsel for Petitioner

Wasnington. 0 C mee PRESS 202 393-0625

(i)

TABLE OF CONTENTS

Page

OPINION BELOW ..... 1.6.2... eee eee cere eee eee em 1

JURISDICTION 2.2... cc ec ccc cc eee c rere ccc cccee 2

QUESTIONS PRESENTED FOR REVIEW ...........-.-- 2

CONSTITUTIONAL AND STATUTORY . PROVI-

- GIONS INVOLVED .........-2- ccc cvcccccceces 2

STATEMENT OF FACTS .........------ ee eeeeeres 3

ARGUMENT AND AUTHORITIES ...........----+---> 5

ARGUMENT .........-00--0 0c eee cece eee eens 36

RTI, og oh no oo ht ob ee phew deen eees 37

. &

TABLE OF AUTHORITIES

Cases:

Abbate v. United States, 359 US. 187 .........+--++--- 6

Adams v. Illinois, 92 S.Ct.916 .........-0- 2 eee eeee 13

Arsenault v. Massachusetts, 89 S.Ct. 35,392 US.6...... ae at

Ashe v. Swenson, 397 U.S. 436, 25 L.Ed. 2d 469,

POSC 1189 2... ccc we ce cee ees bu au be sees 7

Bartkus v. Illinois, 359 U.S.121 .........-..- 2 ee eee eee 6

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

"ie, 7] ee ee ee ee ee 6

Berger v. California, 89 S.Ct. 540,393 US.6 ........--- 11

Booker v. Phillips, 428 F.2d 420-.. 2.2... eee eee ees 19

Bradley v. Rock Gardens Utility District, 186 Tenn.

665, 212SW2d657 0... ccc cece eee eee cnnes 8

Bricker v. Sims, 195 Tenn. 361, 259S.W.2d 661 ..........

(ii)

P

Chimel v. California, 89 S.Ct. 2039, 395 U.S.752 ........ “E

City of Elizabethton v. Carter County, 204 Tenn. 452,

S21 S.W. 24822 00 cece tne eee,

City of Knoxville, Tennessee v. Bailey, 222 F.2d520 ....... 9

Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030,

22 LBA. 28 BAD oi. oe cvcce ccc cc censcccccccece, 7

DeStefano v. Woods, 88 S.Ct. 2093, 392 U.S.631......... 12

Dougjas v. California, 83 S.Ct. 814, 372 US.353 ......... 1]

Elkanich v. United States,91 S.Ct.1148 ............... 13

Escobedo v. Illinois, 84S.Ct.1758 .................. 12

Eskridge v. Washington Prison Board, 357 US.219........ 11

Fox v. Ohio, 5 How. 410,12 L.Ed.213 ............... 18

Fuller v. Alaska, 89 S.Ct.61,393US.80 .....:........ 12

Galloway v. Beto, 421 F.2d 284 ................ crea 1D

Gideon v. Wainwright, 83 S.Ct. 792, 372 U.S.335 ........ 1]

Grafton v. United States, 206 U.S.333................. 7

Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2

L.Ed. 2d 199,61 AL.R.2d1119 ................. 17

Greenwood v. State, 65 Tenn.557................... 21

Hill v. California, 91 S.Ct.1106 .................... 13

Holly v. City of Elizabethton, 193 Tenn. 46, 241

DW BO NGO onsen c cc cw cs reaccasencteccceces 9

Jenkins v. Delaware, 89 S.Ct. 1677, 395 US.213......... 13

Johnson v. New Jersey, 384 U.S. 719,86 S.Ct.1772....... 12

Katz v. United States, 88 S.Ct.507 .................. 12

Linkletter v. Walker, 381 US.618................... 10

Loper v. Beto, 92S.Ct.1014 ...................... 11

Luehrman v. Shelby County Taxing District, 70

Bn a ee 8

(iti)

McConnell v. Rhay, 89 S.Ct. 32, 393 US. 4

Mackey v. United States, 91 S.Ct. 1160

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684

Mayor & Recorder of Nashville v. Ray, 86 U.S. 468

Miranda v. Arizona, 384 US. 737, 86 S.Ct. 1602, 16

L.Ed. 2d 694

ullins v. State, 214 Tenn. 366, 380 S.W. 2d 201

Mulreed v. Kropp, 425 F.2d 1095

Nashville, C. & St. Louis Railway v. Marshall County,

161 Tenn. 236, 30 S.W. 2d , eer key eeneeen

North Carolina v. Pearce, 89 S.Ct. 2072, 395 US.

711

Palko v. Connecticut, 302 US. 319, 58 S.Ct. 149, 82

L.Ed. 288

Reynolds v. Sims, 377 US. 533, 84 S.Ct. 1362

Roberts v. Russell, 88 S.Ct. 1921, 392 US. 293

Robinson v. Neil, 452 F.2d 370 F. Supp. 894 (E.D.

Tenn. 1971) °

State ex rel. Town of Arlington v. Shelby County

Election Commission, 209 Tenn. 289, 352 S.W. 2d

State ex rel. v. Wilson, 80 Tenn. 247

Stovall v. Denno, 388 US. 293, 87 S.Ct. 1967, 18

L.Ed. 2d 1199

Tehan v. United States, 86 S.Ct. 459, 382 U.S. 406

Thornton v. Carrier, 43 Tenn. App. 615, 311 S.W.2d

| rere Sti macnaweetews

United States v. U.S. Coins & Currency, 91 S.Ct. 1041

Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25

L.Ed. 2d 435

(iv)

Williams v. United States, 91 S.Ct. 1148

Wilson v. Sloan, 438 S.W. 2d 75

Witherspoon v. Illinois, 391 U.S. 510

Statutes:

Constitution of United States, Fifth Amendment

Constitution of United States, Fourteenth Amend-

Title 28, US.C.A., §1259(1)

Article 2, §8, Tennessee Constitution

Tennessee Code Annotated, Section 39-105

Tennessee Code Annotated, Section 40-3612

Tennessee Code Annotated, Section 40-3613

Tennessee Code Annotated, Section 41-1219

Miscellaneous:

Code of the City of Chattanooga, Tennessee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-6272

SAMUEL ED ROBINSON,

Petitioner,

Vv.

WILLIAM S. NEIL, Warden,

Tennessee State Penitentiary, -

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Court of Appeals below (App.

p. 80) is reported in 452 F.2d 370 (1971). The opinion

of the District Court below (App. p. 65) is reported in

320 F. Supp. 894 (E.D. Tenn. 1971).