Freeman C. Edmaiston v. William S. Neil, Warden
452 F.2d 494
6th Cir.
1971
Check Treatment

*1 special sought repayments and conclude that the master was Kriesel correct. amounts him due Berkshire. When proceeding the state court was instituted Virginia judi law res alleged $5,000.00 advances Kemp Miller, cata was set forth in prior to the time that Berkshire ob- Va. S.E. existence, property tained as where was said: $3,500.00 well as the claim for advances acquired prop- made after Berkshire When the suit is second between the erty, litigated. first, actually parties same which was No as on the suggested why action, judgment reason has same cause of been litigated latter, former could have the former of the not is conclusive along It, every the state question as court the latter. which too, alleged decided, every as to be a sum due Kriesel but also other Indeed, parties might matter ad- from Berkshire. successive litigated alleged type determined, and had vances take on within running which, they nature of a as the issues as account ten- ease, may pleadings, split up said in dered the Nix or as not be incident prosecuted essentially piecemeal to or in successive connected with the We, therefore, subject litigation, actions. conclude matter same, fact, Kriesel’s barred claim was and its allow- as a matter of ance must were or be reversed. were not considered. As to matters a suit on the same new Approved part; part. reversed in cause action be maintained cannot parties. (Emphasis between the same

added.)

This verbatim statement continues to be Virginia

the mar, rule. Doummar v. Doum 210 Va. 169 S.E.2d 454

(1969); Eason, Eason v. 204 Va. also,

131 S.E.2d 280 Thom Co., as v. Consolidation Coal EDMAISTON, Freeman Petitioner- C. (4 Hirst, Gullo v. Appellant, (4 And, 1964) (per curiam). corollary, Virginia permit does not NEIL, Warden, Respondent- William S. split prose a cause of action to Appellee. piecemeal cuted in successive actions. No. 21041. Son, Inc., Deal v. C. E. Nix & 206 Va. Appeals, United States Court of Gary 141 S.E.2d 683 Steel Circuit. Corp. Kitchin, Products Va. Dec. 1971. S.E.2d Virginia We think that the rule bars $5,000.00 assertion claim in case, the instant not because it was ac- tually litigated prior state court

proceeding, but because it could have litigated

been by within the issues raised pleadings or was incident to or

essentially subject connected

matter of the earlier suit. Both suits parties;

were between the same in both sought

Kriesel to have someone other Sweeny possession than take

property dispose it, and in both

Weick, Judge, dissented Circuit opinion. Cincinnati, Hoefle, Ohio

H. Fred (Court appointed), petitioner-appel- lant. Counsel, Tharpe, Sp.

James M. State Tenn., respond- Memphis, Tenn., Pack, Atty. ent-appellee; M. Gen. the motion pressed denied. David Tenn., appeal, Reporter, of counsel. trial claim on rejected it was the Tennessee WEICK, CELEBREZZE Before Appeals. Court of Criminal Edmaiston PECK, Judges. *3 State, (1970). He 452 S.W.2d petitioned for habeas a writ of then CELEBREZZE, Judge. Circuit corpus District in the United States granted Ap- appeal The District Court from the District Court. This evidentiary hearing corpus. pellant an his on a denial of writ habeas Court's argument petition, Appellant had that appeal Appellant’s but found sole On ruling rights by failing to demand in waived the District Court erred speedy trial; a it also found that denied a was not he pellant he had to establish that failed courts. An evaluation Tennessee Basing prejudiced its ex- was requires a this claim rather extended ruling findings surrounding Appel- position on the District these the facts robbery Court to issue the writ. conviction. refused lant’s urges March, 1960, Appellant Appellant in the failure to Late was robbery bring early charged him at an date with the March Shelby testimony employee liquor nied him the nesses, alibi wit- in two store Albright, County, and Mrs. John Tenn. A warrant was issued Mr. arrest, be- who died auto accident. He for his was not executed a 1965 1962, prior Appellant and located contends that in 1961 cause the time was Albrights, custody deaths of demanded he of Illinois authori- he was having ties, letter arrested an Illinois addressed been on County robbery charge Shelby March Court of and on Attorney He also al- the State General. Once of the arrest informed Illinois leges request that a more formal was Memphis journeyed two detectives to the by petition in 1966—after jail Appellant Illinois held where was deaths witnesses. him that informed he wanted was liquor robbery. rec- found for the store While court Tennessee (or Appellant they re- ord does not indicate that had made several authorities) quests for a other trial and the Court Tennessee took steps Appeals agreed, Dis- secure of Criminal return ap- persuaded. trial other lodged against than to cause detainer trict was This parent court on him on March reversal State 23d. finding Appel- which was favorable Appellant Illinois was convicted on the interesting questions lant raises charge later in 1960 and sentenced to Our treatment of 28 U.S.C. 2254. § twenty years imprisonment. On June unnecessary to issue makes paroled he was and returned question, reach however. There, Memphis. on some June eight years three after months I. against him, Ap- first filed prob first consider the threshold We liquor store indicted for the posed by lem the fact that the bulk robbery. then, first Counsel delay complained the arrest, occurred time, appointed Appellant. to assist least but before indictment. At January later, six Some months speedy trial one Circuit held that the has 1969, Appellant tried convicted apply in such does not at all year and sentenced to a term States, circumstances. Reece v. United Penitentiary, Tennessee where F.2d Unit (5th Cir. presently incarcerated. (5th Williams, ed States v. trial, quash denied Before moved to grounds We the indictment on the violated; agree to a had do not that conclusion. with charged crime, dividual is wheth- in this Circuit cases Several indictment, rather er at time arrest limitations statute governs pre- clause would seem be consistent with than the general. purposes Supreme which the (6th Harris, said underlie the Amendment. Ewell, Hoopengarner United States v. 1959; States, Lothridge Speedy was held to Trial Clause major 1971). Only purposes. prevents one these cases serve three post- oppressive incarceration “undue dealt a situation trial,” possible arrest, prior pre-indictment was com- limits far as *4 (su- of, Lothridge “anxiety accompanying plained In and concern the however. delay accusation,” prevents pra) public the the a ten-month between “ability “impair(ment)” indictment the of the accused’s commission of crime governed by the which would flow held not to be Sixth to defend himself” “long delay.” 120, de- 86 of at than half that 383 U.S. Amendment. More period the before of concurrent The loss was attributable S.Ct. 776. sentencing charges possibilities the limitations filed or an arrest was or made, may question parole from the flow the on terms which however delay filing post-arrest absence even of a detainer substantial certainly give speedy violation includ- trial could rise of an indictment supra, Lothridge, incar- “oppressive types of was not reached. See ed within the Supreme Court alluded 441 F.2d at 922 fn. 3. ceration” the Hooey, 393 U.S. in Ewell. Smith great weight authority sup 575, 607 378, L.Ed.2d 374, 21 S.Ct. 89 ports situa the view that “an- Similarly evident protec (to speedy tion trial “the accompany for- xiety and concern” Dickey tion) upon attaches arrest.” mal accusation —whether Florida, 30, 43, U.S. S.Ct. merely by Per- arrest. or indictment (1970) Brennan, J. “long delay will importantly haps most States, concurring;1 Smith v. United ability accused impair of an S.Ct. delay occurs fend himself” whether (1959); Hardy v. United indictment or arrest between U.S.App.D.C. 343 F.2d indictment. (D.C.Cir. denied, 276; L.Ed.2d recognizing applicability While Sanchez, United States v. some these concerns even in the ab- (2d United States v. indictment and arrest sence both Colitto, (E.D.N.Y. F.Supp. felt Circuit nevertheless has pre-accusation need for in- confidential decisions, holding speedy vestigation requires usually speedy These protection applies rights trial whenever an not attach until indictment. Although explicit Dickey, here, 1. statement of Limita- as the Statute upon protection protection attaches ar tions afford no could against delay rest taken Justice Brennan’s con the statute was because curring opinion Dickey war- it should be tolled the issuance of an arrest upon noted that relied to re make the rant. Failure Dickey, Dickey’s verse state conviction in situation clause post-arrest, pre-indictment unlimited the State nature. would have allowed long See 398 30 at as it did not obtain trial so inferentially At result would A similar least Su indictment. unanimously preme accepted if hold that follow here we not protection protected idea that could Amendment, attach before either an or in well as the Statute formation existed where an arrest war Limitations. rant had been issued and a detainer filed. Harris, supra, Appellant’s See United States v. conviction was entered on feasibility January 1969; secret Hooey the Smith v. however, gathering, disappears evidence decision was not announced until Janu- ary 20, in most once either arrest or in- Dickey cases 1969 and the v. Florida place decision, May 25, dictment taken and an accused 1970. The Tennessee acquainted nature Appeals, reviewing of Criminal him. Smith, conviction after before announced, had been reasons we believe these For that under these circumstances Smith allowing protection did not control its decision. Edmaiston upon occurs arrest arrest attach when State, Tenn., 452 S.W.2d before indictment is consistent with It held that it was free fol- purposes supporting Amend the Sixth pre-existing low Tennessee law which upon places undue ment and no burden placed responsibility on the State prosecuting enforcement authorit or law secure return prison- out state ies.2 Whether ers for State, trial. See Burton v. abridged, depends has been course Tenn. 377 S.W.2d 900 It was specific facts of each case. Appel- State Court’s conclusion that rights lant’s to a trial had not *5 II. rights been violated because no accrued Having until speedy he released from the Illinois determined the prison. against post- protection trial is available arrest, pre-indictment turn we now We believe Smith Appellant’s of consideration whether Hooey (and Dickey Florida) should rights circum- violated under were the applied retroactively be and therefore stances of case. this that Tennessee’s failure to dili use due rulings between 1967 In a series of gence attempting bring in greatly Supreme ex- and the promptly dep could constitute a in panded the law rights rivation of his trial de First the situation. spite his Illinois incarceration. directly ap- speedy trial Walker, Since Linkletter v. 381 U.S. Klopfer proceedings. plicable in state 618, 1731, 85 S.Ct. Carolina, 213, 87 S.Ct. 386 U.S. v. North (1965), only was announced fac three 1969, then, 988, in 18 L.Ed.2d 1 tors have been held to be at all relevant diligence” required “due it states to use determining in a new or not securing return for the in given constitutional rule should retro prisoners held other states. Smith in spective application. these, one, Of 374, 575, Hooey, 393 U.S. S.Ct. purpose the to be served new (1969). Finally, in L.Ed.2d 607 standard, signif primary has Florida, 398 U.S. 90 S.Ct. icance. fail- it L.Ed.2d 26 diligence, least when at major ure to use such purpose “Where' of new prejudice, coupled evidence of with some constitutional doctrine is to overcome voiding justified ob- of a conviction aspect criminal finding substantially tained impairs after its truth Throughout justice application we have this discussion of the new rule. See retroactive Appellant, charging supra Linkletter, the formal treated and warrant, in- Denno, of the arrest issuance Stovall v. filing in Illinois and carceration detainer as As constituting points out, however, an “arrest.” Mr. White Justice (see quoted) neither these text consid (1) elements: 3. There are two other proved significant where the erations has past reliance law the extent of guilt mechanism was found determinative the old rule enforcement authorities on (2) faulty on the correction devised. the effect administration to be and a ques- III. serious raises function guilty accuracy of about tions explicit statement of all While trials, past the new rule in verdicts factors relevant consideration complete given ef- retroactive has been appeared in of a has good reliance faith Neither fect. this is evident in estab prior authorities state or federal lishing justification the lack of practice accepted law or constitutional tardy length trial and the extreme impact administra- on the severe nor delay eight years— and one-half — require justice sufficed to tion of Appellant has offered evi substantial application in these cir- prospective rights dence that his plur- White, cumstances.” J. accepted generally violated. It is in States, 401 ality in Williams Circuit, however, justify voiding of a conviction on grounds prejudice Appel actual to the pri- no doubt There can be lant must also be shown. Barker v. mary in purpose Smith rule Wingo, (supra,) Hooey Dickey v. Florida and in Fouts v. United ability protect an accused towas “the denied, (Smith, 393 U.S. defend himself.” explaining at Supreme Court its decision Smith Appellant has fulfilled that ob disap- “Evidence witnesses noted: ligation. preju he He asserts that pear, fade events lose memories potential alibi diced the death of two perspective” man isolated their and “a years witnesses 1965 —some five prison powerless to exert his own charged first crime' mitigate vestigative ero- these efforts *6 question. He claims also that he lost passage of time.” of the sive effects sentencing possibility for the concurrent The Court’s at at Id. 578. might him which have been available to language the reli- indicated fear that soon had his trial been held Tennessee determining ability process guilt after Illinois one. the being adversely by the de- was affected lays Smith, Dickey specifically and evi- Supreme The possi- circum- dent here as well. Under the “limit clared that a desire to the retroactivity stances, long delay impair for the Smith and bilities will Dickey appropri- ability seem decisions would defend himself” of to an accused ate. principal rationales one of the provi- destroys Sixth Amendment's This conclusion basis Ewell, U.S. its sion. States v. reason for the State’s delay bringing Appellant S.Ct. to was types of explaining permissible In one.4 account, delay Klopfer into 4. v. North was de- would taken Since Carolina Appel- course, if we chose to follow Mr. Justice cided more than 15 months before Dickey ap suggestion in lant’s and 22 months before Harlan’s ply an as enunciated in case not con- the rule his Tennessee conviction we need process retroactivity interpretation clause. of the due sider decision Wainwright, applying See Hoskins (5th 1971) ; Lassiter Cir. to the states. Even 72 n. Sixth Amendment cf. (4th Turner, assuming delay be traced March, Klopfer cert. denied 400 when was an- U.S. placed where S.Ct. nounced and the State was retroactively. applied obligations Klopfer was under notice to its preceding Amendment, delay re of this case do not Circumstances retroactivity quire Appellant’s impermissible to decide trial was of an us viewing appropriateness Klopfer Smith, length. or process deci affording Klopfer as due retro- Even without activity year eight the full and one-half sions. might purposes fail- impairment opinion from result of this the correctness bring prisoner promptly the District ure to Court’s determination Supreme specifically alluded that no demand in fact was made we Appellant’s possibility believe of defense witnesses failure to make Hooey, supra, being not, such a demand Smith v. lost. See the cir- rights ease, 379-380, 89 575. cumstances at S.Ct. waive U.S. alleged course, Dickey, under the Sixth the death of Amendment. principal factor was alibi witnesses It is the rule in this Circuit “abundant Court’s conclusion that that demand for a trial must be petition- prejudice to of actual evidence made at the time after soon 30, 38, 90 er” shown. had been delay object or else the to that named Appellant has Cardwell, will be waived. Short testimony specific whose witnesses (6th 444 F.2d 1368 Barker delay; his own him lost Wingo, 442 F.2d 1141 vague understandably memory Fouts United eight occurring regard to events cert. denied 358 U.S. years cannot be trial. one-half before ability pre- disputed that Tennessee, Carter pare impaired. his defense was 1927).6 (6th Cir. This waiver has been Supreme considered Court has also specifically apply im sentencing pos- concurrent loss of charge prisoned press on one who fail significant incident to be sibilities charge pending for trial on a in another resulting prejudice supra. jurisdiction. Cardwell, Short v. Hooey, supra, Smith v. significantly This case differs possibility of such Short, failed to open however. Short make sentencing have been would though indictment had demand even followed his Tennessee had against him after been filed soon proceeding reasonable Illinois Here no commission the crime. promptness. Edmaiston dictment was Appellant has demon- We believe the Illinois until his release from after by the prejudiced strated eight years penitentiary —some question. robbery liquor took Tennessee store *7 place. IV. found The District of an in- believe that absence We protection not be could distinguishes sufficiently this dictment had failed because voked supra, Cardwell, so v. from Short case early “press an confrontation for inapplicable rule to make the demand State.”

with his accusors with here. 38, 30, Florida, Dickey v. applying in strictest demand (1970). Even recognized doing the federal have In the District Court rule courts right assert prop- had “waived” his should not situations where waiver Assuming for speedy trial claim. his erly to demand inferred failure be point. There some doubt on broadening step trine as out with Supra. rights. speedy See United States (S.D.N.Y. Mann, F.Supp. v. necessity leading suggesting case Richardson, ; States United v. oft-quoted for ; (S.D.N.Y.1968) F.Supp. Hicks v. Lustman, (2d v. (1961). People, 148 Colo. 364 P.2d 877 1958) cert. denied 358 U.S. 79 S.Ct. Brennan, J., concurring in (1958). A few states Cf. 30, 49-50, Florida, several federal courts as well as lower recently rejected doc- have the demand L.Ed.2d

5Q1 leading deci- speedy trial.7 One of the because of the per of the indictment absence area is our own Fouts sions in this se.8 States, supra, 253 F.2d We believe that in the absence of “un- held that defendant where it was an indictment no amount information cannot he is indictment aware that potential communicated to a defendant right.” Id. held to waived be require him to demand his in was'reached conclusion at 218. A similar against dictment waive the or the District of Columbia delay given by the Amendment. States, U.S.App.D.C. Taylor explanation An of this conclusion re Pitts Cf. quires an un examination reasons Carolina, of North State derlying demand rule and a comparison of those considerations with Appellant’s position the realities of be fact these cases turned on Bach of fore indictment. de- circumstances that under all the expected to designed have been could not fendant rule has been to deal appropriate. problems demand was with two associated know any knowledge rights. to the lack of assertion of addition One sug- danger releasing factually guilty other evidence there was if gesting little the defendant knew who have to an im- contributed charges permissible delay by acquiescence anything nature of the their brought against sought being by engag- In Fouts prosecution delays him. or example indication ing is no dilatory there of their own. tactics go idea that By requiring defendant had an on record accused to him; pending charges request prompt were only positive appears unnecessary hoped Pitts it knowledge courts have to avoid ob- pending disputes or there was as whether informal conference acquiescence particular tained or matter. prison on another prose- officials from a maneuver resulted explicitly the courts Implicitly or and related cution or defense. A second jeason eases basing in these their decisions has been the for the demand rule unwillingness a defend- courts’ allow oft-quoted waiver rule reap are ant to remain silent and what right inten- “an must be fundamental delay and seen to the benefits relinquishment or abandonment tional then later to be allowed privilege.” Johnson a known Among the protection. Zerbst, is seen to defendant “benefits” which (1938); Miranda 1023, 82 L.Ed. 1461 time additional receive are: Arizona, 384 U.S. trial; disappear- free on bail before change witnesses; prosecution ance question not reach The decisions go ahead prosecutor’s decision adequately in- a defendant of whether *8 ex United States See matter. against charges him could formed of Fay, 623 F.2d 313 Cseh v. rel. Von simply Wingo, requirement 442 demand (2d avoid the Barker v. Speedy Right Note, to a “The Dur- waiver here. See a claim of basis for period Trial,” 854-55 Rev. ing Colum.Law Banks 57 montli the ten trial, he knew but a demand not un- only and warrant of the arrest however, may, in be distinction Such indicted.” he had been informed in another Fourth herent fn. F.2d Banks, States trial case. language urged that be It can 1966) denied contemplates awareness full defendant’s rejects him, but said: the Court applicability doctrine demand trial] [to a “The waived, may pre-indictment course, is no there situation. be a prisoners expect New such can to receive Maxwell, (2d any prolonged delay. They benefit from cert. denied 389 have neither their to freedom retain nor Note, any expectation they can a Cf. dissuade Right Speedy Trial,” “The a prosecutor to 20 Stan proceeding if such is ford Rev. his determination. The likelihood Law. losing heavily witnesses more falls on a assumptions give The which life to prisoner significant unable to maintain these rationales have been under increas- contacts the outside world than on ing recently (see attack cited at cases prosecutor power a resourc- 6). n. While these assaults on the es- disposal. es state at his Mean- present tablished do reasoned well rule delay may prisoner while the cost approach necessary agree it is not to sentencing possibilities, concurrent lim- regards with them as the demand rule parole opportunities hamper it his as a whole to conclude that the rationales preparation for is trial. little rea- There for the demand little rule have prisoner Appellant’s posi- son for relevance to situation. delay. tion seek Neither does such Appellant did prisoner any not opportu- contribute substantial any way nity to the The prosecution to hinder a in the firmly obliga convinced that pre-indictment it stage. had no only rationale try Appellant tion to and no demand possibly for the demand rule could speedier have led trial.9 prisoner gen- See be to such a State, Edmaiston v. 452 S.W.2d 680- eral is desire that defendants re- be (Tenn.Ct. Crim.App., quired De prosecutor to remind any mand required has lays never been unnecessary where may so that ones request proven would have futile. Unit avoided. Whatever the merits of this Provoo, (D. ed States v. 17 F.R.D. requirement post-indictment in the sit- Md.) aff’d mem. they noticeably lacking in uation are L.Ed. Thus pre-indictment stage. require first for rationale the demand thing require It one defendant is inapplicable ment is here. community formally accused through gained an indictment to choose either So too is second. advantage acquiescence in de no it the benefits silent here nor is likely gained possibility prompt no vindica that he could He have. failing period additional tion assertion of his freedom press rights. speedy trial; quite im- he was another to ex prisoned man, yet pect at all times. not ex- He could indicted pect prosecution certain ever in reverse itself means that he will be prosecute very thing justly dicted, indict- decide not to seek ; ment no indictment had ever true bill return of a fears —the during stay. prison Jury. States v. Colit Grand (E.D. to, F.Supp. 1077, grant While Tennessee’s out refusal N.Y.1970). prisoners pre- of state a trial Hooey already period uniquely Smith v. under- reflects rule here, peculiar cuts be- relative re- demand rationale we rather view of the trial; bringing sponsibilities lieve that it almost on a as clear that applicability an individual must not rationale to hold that little serving facing timely held, prisoner one sentence and see *9 charge stages possibility preliminary of his of trial on another yet ap- prosecution for has not indicted. which he been are also undertaken presence 9. based on Ten- This view was a line of could not those whose holding g. prisoners. compel, nessee cases had e. out of state See responsibility bringing opinion. for II of this Section

503 denied, 72 dispatch upon penalty propriate of for- cert. 343 U.S. right” feiting United 1343 See also to im- a “fundamental 96 L.Ed. Marion, heavy pre- 404 U.S. 92 S.Ct. pose indeed on States burden (Decided December do sumptively innocent 30 individual. We 1971). is contem- burden not believe plated Sixth Amendment. I for the reasons stated would affirm Judge Bailey in his Brown Chief Y. Deny- and Order Memorandum Decision ing Dismissing Action, Petition and Finding long preju F.Supp. 1316. delay ease, dicial occurred justified ap cannot be plicable and that standards constitutional to as did not waive his claim, hold we sert de denied the Amend afforded him Sixth America, UNITED STATES remand to ment. reverse and We Appellee, grant instructions District Court with the writ. MURRAY, Appellant. Bruce Edward No. 71-1179. Judge

WEICK, (dissenting). Appeals, United my opinion States Court safe- Eighth Circuit. guard applies Amendment occurring Sept. only the de- charged com- fendant has been Certiorari Denied Feb. mission an offense. In the See S.Ct. 980. had for arrest case warrant issued had been He Tennessee. arrested; rather, only detainer in Illinois. with authorities questionable here whether a proper au- ever

thority. Cardwell, F.2d Short v. (6th Cir. gov

Delay filing lim

erned statute of This the established itations. has been years. many law Sixth Circuit Lothridge States, F.2d 919 v. United (6th Har United Cir. 1969) ; Hoop ris, (6th 412 F.2d States,

engarner F.2d v. United (6th Cir. 1959); United Parker v. (6th Cir.),

States, cert. 252 F.2d 680

denied, Reece Accord: (5th States, States, Harlow denied, (5th Cir.), States, Foley 1961); D’Aquino v. Unit ed