Opinion
No. 99-12346-GAO
July 30, 2002
MEMORANDUM and ORDER
The petitioner, Arthur Jackson, is in custody pending his trial on an armed robbery indictment in the Massachusetts Superior Court. Jackson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides an avenue of relief to "a person in custody pursuant to the judgment of a State court. . . ." Id. at (b)(1). Section 2254 does not apply to the petitioner's case because, as a pre-trial detainee, he is not being held pursuant to a state court judgment. The petitioner may seek relief from this Court pursuant to 28 U.S.C. § 2241, which extends habeas relief to a prisoner who "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also, Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998). Therefore, though the petitioner invokes § 2254, the Court will assess the merits of his petition under the provisions of § 2241.
Unlike § 2254, § 2241 does not have an express exhaustion requirement. Nevertheless, the general rule requiring the exhaustion of state court remedies applies to all but the exceptional case. Federal courts should "respect the authority and ability of state courts to protect constitutional rights in the first instance." Benson v. Super. Ct. Dep't of Mass., 663 F.2d 355, 358 (1st Cir. 1981). On March 28, 2001, the Court allowed the petitioner to amend his petition to delete his unexhausted claims. As amended, the petition now alleges: (1) a violation of the petitioner's Fifth Amendment right against double jeopardy based on the state's prosecution of him both for receiving stolen property and for armed robbery and (2) a violation of his right to due process based on the initiation of the armed robbery prosecution.
Background
It is necessary to recite the relevant events in some detail. On March 20, 1996 at approximately 2:00 p.m., a man entered a doctor's office in Jamaica Plain, displayed a handgun, and stole property from the doctor and his secretary. Approximately one hour later, the petitioner was arrested in Cambridge as he attempted to cash one of the secretary's checks. He was charged in the Cambridge District Court with the crime of receiving stolen property. On April 4, 1996, the petitioner pled guilty to the receiving stolen property charge and was sentenced to two and a half years in the Billerica House of Correction with one year to serve and the balance suspended for a period of probation. This case was prosecuted by the Middlesex County District Attorney's office.
On April 5, 1996, the Suffolk County District Attorney's office obtained a criminal complaint against the petitioner in the West Roxbury District Court charging him with two counts of armed robbery, for the robbery of the doctor's office that had occurred on March 20, 1996. Three days later an arrest warrant for the petitioner issued based on the complaint.
On September 9, 1996, while serving the sentence imposed by the Cambridge District Court, the petitioner learned for the first time of the outstanding armed robbery warrant when he was denied the opportunity to participate in a community work project because of the warrant. Perhaps fearing that his guilty plea to the receiving stolen property charge would be used against him at a trial on the armed robbery charges, the petitioner, acting pro se, filed a motion for a new trial and a motion to withdraw his guilty plea in the Cambridge District Court. In brief, he contended that his guilty plea should not have been accepted because the court had not conducted the required plea colloquy. Meanwhile, the petitioner was arraigned on the armed robbery charges in the West Roxbury District Court. On December 12, 1996, a Suffolk County grand jury returned armed robbery indictments against the petitioner. Both indictments included sentence enhancing allegations that the petitioner was a habitual offender.
On December 28, 1996, Jackson completed the incarceration portion of his sentence on the receiving stolen property charge and was released from the house of correction. On January 2, 1997, he voluntarily appeared at Suffolk Superior Court for a pre-trial conference in the armed robbery case and was arrested on the outstanding warrants. To this day, he is being held in lieu of bail awaiting trial on the armed robbery charges.
At least part of the reason for the delay in the commencement of a trial on the charges is that Jackson twice moved unsuccessfully to dismiss the indictment and then pursued appeals from the adverse rulings. See Jackson v. Commonwealth, 770 N.E.2d 469 (Mass. 2002).
After his arraignment and detention, the petitioner appeared without counsel on January 14, 1997, in the Cambridge District Court for a hearing on his previously filed motions for a new trial and to withdraw his guilty plea in the receiving stolen property case. The petitioner argued that he had not received a colloquy at the time of his guilty plea. At the hearing, an attorney who happened to be in the courtroom but who did not represent Jackson spoke briefly with him and advised the court that the disposition of Jackson's motions could affect the armed robbery case pending in Suffolk County. The attorney suggested that the petitioner might benefit from consulting with his counsel in that case. The court continued the hearing until January 30 and stated that it would review the tape of the petitioner's guilty plea to determine if the petitioner received a colloquy and would notify the petitioner's counsel in the armed robbery case of the January 30 hearing.
Neither Jackson nor his counsel were present at the hearing on January 30. The judge advised the assistant district attorney present for the Commonwealth that he had reviewed the tape of Jackson's guilty plea, that it indicated that there had not been an adequate colloquy, and that the judge had therefore granted Jackson's motions and vacated his conviction for receiving stolen property. The Commonwealth requested a new trial date. On July 28, 1997, the Commonwealth entered a nolle prosequi on the Cambridge District Court receiving charges.
The record does not disclose whether or not counsel in the Suffolk case had been notified of the January 30 hearing.
On November 25, 1997, the petitioner moved to dismiss the Suffolk County armed robbery indictments on grounds of double jeopardy and collateral estoppel. This motion was denied and the denial was affirmed by the Massachusetts Supreme Judicial Court ("SJC"). See Jackson v. Commonwealth, 717 N.E.2d 1001 (Mass. 1999). Thereafter, the petitioner filed the instant petition seeking relief from his current pre-trial detention.
Double Jeopardy Claim
The petitioner's Fifth Amendment right against double jeopardy was not violated. The double jeopardy clause "protects against a second prosecution for the same offense after conviction," Ohio v. Johnson, 467 U.S. 493, 498 (1984), and a guilty plea constitutes a conviction. Kercheval v. United States, 274 U.S. 220, 223 (1927). It has not been firmly decided whether under Massachusetts law, a person can be convicted both of armed robbery and of receiving stolen property taken in the robbery, see Commonwealth v. Nascimento, 659 N.E.2d 745, 749 (Mass. 1996) (finding it inconsistent to convict a person both of larceny and receiving the same stolen property), but as the SJC noted, the question need not be decided because Jackson's conviction on the receiving charge was vacated. See Jackson, 717 N.E.2d at 1003 ("Because the defendant's double jeopardy rights are not offended, we need not discuss the issue whether one can be convicted of both receiving stolen property and robbery of the same property.").
Because Jackson voluntarily sought and obtained the vacation of his conviction of the receiving stolen property charge, the Double Jeopardy Clause does not bar his prosecution for that offense. See United States v. Scott, 437 U.S. 82 (1978); Ball v. United States, 140 U.S. 118 (1891). Nor does it bar prosecution for any other offense arising out of the same events, including the pending armed robbery charges.
Jackson argues that his right against double jeopardy was violated the moment the second prosecution was commenced. However, the right against double jeopardy does not attach in a criminal case until the jury is impaneled and sworn, or in a bench trial, until the court begins to hear evidence. See Serfass v. United States, 420 U.S. 377, 388, (1975) (stating that "[t]he Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is `put to trial before the trier of facts, whether the trier be a jury or a judge.'") (quoting United States v. Jorn, 400 U.S. 470, 479, (1971)). The Suffolk case has not yet reached that point.
If it were certain that a pending prosecution, once it reached the stage of trial, would violate a defendant's double jeopardy right, it would be appropriate for the defendant to move to quash or dismiss the indictment. See Allen v. Att'y Gen. of Maine, 80 F.3d 569, 572 (1st Cir. 1996); see also Neverson v. Commonwealth, 546 N.E.2d 876 (Mass. 1989). Indeed, that is what Jackson apparently did, but the state courts denied his motion, concluding that the vacation of the first conviction opened the way for a subsequent prosecution. See Jackson, 717 N.E.2d at 1003. Their conclusion in this respect was correct. The Commonwealth's entry of nolle prosequi on the receiving stolen property charge indicates that it has decided to go forward with the armed robbery case. Because the conviction in the first case has been vacated, Jackson will not suffer double jeopardy if and when the trial on the armed robbery charges commences.
Collateral Estoppel Claim
Jackson also claims that the initiation of the armed robbery prosecution violated his due process rights under the doctrine of collateral estoppel. As the SJC correctly pointed out, this claim "fails for substantially the same reason that the double jeopardy argument fails." Id. The principle of collateral estoppel holds "that when an issue of ultimate fact has . . . been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). Because the defendant's conviction on the receiving stolen property charge has been vacated, the collateral estoppel principle will not apply to the subsequent prosecution on the armed robbery charges.
Due Process Claim
The petitioner also argues that his procedural due process rights were violated when the court granted the petitioner's pro se motion for a new trial in the receiving stolen property case after it had ordered the petitioner's attorney from the armed robbery case to be present at the hearing on January 30 but before the hearing actually occurred. The petitioner argued to the SJC that these facts supported a claim for a violation of his Sixth Amendment right to counsel, not a violation of his procedural due process rights. It appears that Jackson subsequently attempted to raise this due process claim before the state court, see Jackson, 770 N.E.2d at 469, but the SJC refused to decide the merits of the claim, holding that, unlike a double jeopardy claim, a due process objection must normally be raised in the regular course of a post-conviction appeal and that the petitioner had "failed to demonstrate that an appeal following conviction on the armed robbery charges would not be adequate" to present the due process argument. See id. at 471. Since the merits of the petitioner's due process claim has not been addressed by the state court, it is not ripe for habeas review. See Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) ("[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record . . .; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.").
The SJC in Jackson held that the petitioner did not have a federal or state right to have the assistance of counsel in moving for a new trial. See Jackson, 717 N.E.2d at 1005 (citing Commonwealth v. Conceicao, 446 N.E.2d 383, 387 (Mass. 1983) ("[W]e conclude that an indigent defendant does not have an absolute right under any provision of the United States Constitution or the Massachusetts Declaration of Rights to appointed counsel in preparing or presenting his motion for a new trial.").
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
IT IS SO ORDERED.