James Mizell v. The Attorney General of the State of New York and Ano.

Before MULLIGAN, FRIENDLY and WYATT, Judges, Circuit District Judge.*

MULLIGAN, Judge: Circuit Mizell was on September James convicted Court, Supreme 1971 in New York County, robbery, petty Kings larceny, dangerous possession weap- assault and on. The record in the state court indicated plus of twelve two alternates duly impaneled and sworn late in the Wednesday, March afternoon judge gave jury prelimi- The state court adjourned nary instructions the case to following morning. Mizell’scounsel re- quested hearing Wade to determine the admissibility certain identification testi- hearing mony. A was held the court testimony found that was admissible. (2:45 m. on point p. Thursday, At 25) Attorney the Assistant District March advised the court that two state witnesses subpoenaed had been had failed to who gone to North appear. One Carolina a death in the and the family because of appear- to make other had failed Attorney ance. The Assistant District re- quested following continuance until the Monday. York, sitting by designation. New Southern District of

*United States District took Mr. point following colloquy Albert At that If [Petitioner’s Counsel]: your please, Honor I’d my like note place: exception. going am I to do The Court: What You exception. Court: have an Turner? with that Mr. again The case was called for trial before Turner District Attor- Mr. [Assistant 30, jury Tuesday, a new on March 1971 but are Honor, jurors Your since the ney]: a mistrial subsequently was declared when week, they their first week this serving jury agree the failed to on a verdict. Mizell well. I serving next week as would was found eventually guilty by another hardship it be a on don’t think would jury. 10, At sentencing September 1971, on because we wouldn’t be hold- jurors those Mizell’s counsel moved to dismiss the indict- However, if ing past them their service. on ground ment the of jeopardy. double a it would be hard- the feels that Court appeal The motion denied. was On would people the then the ship on Appellate of Supreme Court, Division the discharge move at time for a have to York, the State of New Depart- Second jury. of the ment, the judgment of conviction was af- opinion firmed without on February Court: so you moving? Are appeal 1973. Leave to to the Court of Well, Turner: I ask Mr. would first Appeals was on April denied 1973. The my on application that Court rule concedes that fully State Mizell has ex- jury. keep the hausted his state remedies. The Court: Denied. On November 1976 Mizell filed pro a case, your Turner: in that Mr. Then application se for a writ corpus of habeas in Honor, the people would have to move for the United States District Court for the jury. of the of Eastern District New raising York right, The Court: All that motion is that jeopardy issue had attached when the jury granted. basing ruling is first was sworn in on its March 1971. The State contended that under the “New case of matter of Bland Roy [on] rule” York the time of Mizell’s three William (phonetic) and also the matter of placed trials defendant was not in jeopar- [Murray] Maury (phonetic), which de- dy until a witness was sworn.1 2nd, Page cided in 20 New York 552 [285 633], right, 232 N.E.2d All N.Y.S.2d In a memorandum and order filed bring jury. Discharge in the them. on December Eugene 19772 Hon. H. incorporated Supplement this rule was the advance of sheets the Federal Legislature York State into N.Y.Crim. New dated March 1978. A motion was made 40.20(1), 40.30(1) (McKinney 1971); respondents pursuant Proc.L. L.1970, 60(b)(6) §§ to Rule of c. on and became effective § the Federal Rules of Civil Procedure for an September statute subse 1971. The vacating judgment directing order en- quently provide amended in that try judgment granting of a new the same relief. jury jeopardy jury attaches when a Nickerson, finding that no service had empaneled and sworn. N.Y.Crim.Proc.L. apparently respondents been made and that the (McKinney Supp.1977). 40.30(1) § diligently expeditiously, granted had acted motion, prior judgment vacated the judgment granting 2. The the writ was entered entry judgment granting directed the of a new January 3, respondents failed to on 1978 but petition for the writ. timely despite appeal file notice of since 77(d) F.R.Civ.P. states: on terms of the order filed December entry by Lack of notice the clerk does copies requiring the clerk to make of .he order appeal not affect the time to or relieve or parties, and to serve such service was not party authorize court relieve for 4(a) made. Under F.R.A.P. time to State’s appeal allowed, failure to within time expired February 1978, thirty days appeal on except permitted 4(a) in Rule of the Feder- 4(a) after the was entered. F.R.A.P. Appellate al Rules of Procedure. provides ap- the State could have further plied grant The district thirty court’s under days relief Rule not to exceed extension 60(b)(6) appeal extends expiration thirty day peri- effect the time to first from the sixty days wit, permitted by od, more than the Respondents F.R.A.P. until March 4(a). appeared Several circuits have until established an ex- did not learn of the decision necticut, 149, 153, Judge, Nickerson, District United States York, (1937) reasonably it was a writ issued of New District Eastern Benton jeopardy stan finding that under clear federal corpus of habeas 2056, 23 Maryland, apply to the states and that dards did not states were bound to (1969), the not protect the Fourteenth Amendment did L.Ed.2d v. rule jeopardy follow a double defendant subjected to “hard claim unless he was attaches as (1963) jeopardy shocking ship policy acute and that our so found He further jury as a sworn. soon Ben However, not endure it.” [would] re discharge of supra, Maryland, ton Palko was overruled necessity” or the “ends by “manifest quired was held to and the double clause justice.” public justice fundamental to our scheme so 1066, 1072, 35 L.Ed. U.S. ap “the same constitutional standards that (1973). agree with the District We 2d 425 ply against both the State and Federal but, has been released since Mizell Judge 795, 395 89 Governments.” U.S. S.Ct. judgment ap we custody, vacate from opinion In below Nickerson his to the District and remand pealed from rejected that the dif the State’s contention judgment new of a for consideration Court between the federal and New York ference remedy. appropriate containing an concerning when attaches jeopardy rules States, merely Rath supra, technical or mechanical. v. United In er, Judge if Nickerson found that com law that a defend established “[t]he it became to court, position particular jury of a is crucial” jeopardy in a federal ant were tried interest, that the dou jury sworn. the defendant’s and as as the attach soon would supra; United ble the defendant’s v. jeopardy protects clause See Nenna, completed by right “valued to have his trial ex rel. Bland F.Supp. v. 282 Attorney v. tribunal.” Mizell (2d Cir.), particular a d, 416 (S.D.N.Y.), aff 393 F.2d 754 cert, York, of 2323, the State of New 442 General 20 denied, 392 U.S. v. Con (E.D.N.Y.1977). We (1968). Under Palko F.Supp. 871-72 1403 judgment, winning party preju- special of is not to F.R. ception circumstances under by appeal, losing party vacating upheld moves 77(d) diced and have Civ.P. judgment 60(b)(6) re-entry a judgment where to vacate the within reasonable under Rule of entry. 4(a) sixty its days appeal time after he learns of Id. at 810. under F.R.A.P. to cases, however, accept- required not feel that this would expired. We do view be have These Although squarely circuit has not showing failure to ed here. than the mere of more a (compare judgment notify parties en the issue International has been addressed that Vesco, (2d Rather, Corp. v. on a Controls 556 F.2d 665 Cir. courts have insisted tered. cert, denied, attempted 1977), diligently showing 434 U.S. counsel has that (1978)), prior implicit duty 54 L.Ed.2d 758 decisions indicate in Fed.R.Civ.P. to 77(d) making inquiries 60(b)(6) may granted a Rule motion not be discover the status to diligent showing Buckeye Corp. Braggs effort coun- absent some of Cellulose the case. of Co., (8th to ascertain the status of case. In 569 F.2d 1036 sel Electric Construction Mary Norwegian Agency, Deposit 1978); Fidelity America Line Co. of Radack Cir. Inc., Inc., (2d 1963), Pool, 318 F.2d we stat- 523 F.2d 744 Cir. Hail land (5th Usaform cert, denied, 1975), ed: Cir. ipso (1976); of notice does not facto mean In re Mor [L]ack 48 L.Ed.2d S.Ct. must, (“To 1974) judgment row, (5th re- that a can or should be Cir. 502 F.2d 60(b)(6)] opened . cannot appeal to . . be [Rule is failure noti permit an where there more, opposed to amendment used circumvent fy, would without 77(d) dealing 77(d).”). effect lack wording Rule with the of of Rule and intent clear running appeal. 60(b)(6) on the of the time for granting in the notice motion Rule In States, Wagner case, Expedi- also 316 F.2d 871 See (2d court relied on the district instant 1963). Enterprises, Aquatic Inc. v. Cir. Unlimited tions appealed Inst., U.S.App.D.C. the district If Mizell had court’s Smithsonian vacating judgment, we would order earlier (1974), trial court held that a which F.2d may However, since Mizell did be bound to reverse. a under Rule vacate and re-enter appeal, upon showing no more than timely take such we do 60(b) appeal a allow entry note the error here. party had actual notice of neither ing principles of reasoning argument articulated law—an subscribe to the fully reject in the district court and see reason is our we view that Crist should —it fact, filing repeat here. after fully applied retroactively. below, Supreme Court opinion The three-pronged State relies on the test Bretz, Crist Walker, Linkletter v. (1978), rejected as unconstitu- 57 L.Ed.2d (1965) which, the Montana rule like the for- tional appropriate retroactivity.4 test of How- law, provided jeopardy mer New York ever, that ignores contention Robinson v. only attaches after witness sworn. Neil, 35 L.Ed.2d stated: (1973) in which the Court stated: long Although it has thus been estab- The prohibition against being placed may jeopardy lished that attach jeopardy is readily double likewise not inconclusively, that ends criminal trial susceptible analysis under the Linklet- at- point jeopardy at which does precise ter line of cases. . open have tach guarantee argument Court’s decision before this significantly procedural different from in Downum v. United guarantees held in Linkletter line 10 L.Ed.2d 100. There cases to Jeopardy prospective the Court held the Double have effect only. prosecution prevented others, second of While guarantee, Clause this like the is a a defendant whose first trial had ended right constitutional of the criminal de- jury just fendant, after the sworn and practical prevent its result is to any testimony had been taken. before all, taking a trial from place at rather necessarily pinpointed the The Court thus prescribe procedural than rules that stage jury jeopardy at- that govern the conduct aof trial. A number taches, case since and the Downum has of the applied pro- constitutional rules authority explicit been understood as for spectively only under the Linkletter cases proposition jeopardy the that attaches were not found to affect the basic fair- the is jury empaneled when and sworn trial, ness of earlier the but to have been (citations omitted). and footnote 98 S.Ct. directed instead purposes to collateral at 2160. such as the police deterrence unlawful Ohio, Mapp conduct. supra Supreme U.S. It is evident that [367 81 6 L.Ed.2d (1961)]. that rule S.Ct. 1081 Crist considered which was Florida, In Waller 397 by formulated Downum in 1963 was made U.S. [Waller (1970)], 90 S.Ct. 25 435 applicable by to the states Benton in 1969 L.Ed.2d how- ever, simply ruling and was not a mechanical or arbi- Court’s was squarely di- prevention trary rule of convenience.3 Even we rected to the if of the second position State, all, accept taking place were trial’s though at even new Crist established and overrul- have been conducted with scru- Linkletter, Supreme 3. Downum 4. Since constitutionalized rule Court has jury retroactivity attaches as soon is sworn viewed the aof new constitutional by recognizing jeop- affecting its source to be double rule criminal trials as a function of See, ardy g., “(a) clause of the Fifth e. purpose by Amendment. three factors: to be served Co., Supply standards, (b) United States v. Martin 430 Linen the new the extent of the re- 564, 569, by 51 642 U.S. 97 S.Ct. L.Fd.2d liance law enforcement authorities on the States, (1977); standards, Serfass v. United 420 U.S. (c) old the effect on the adminis- (1975); 265 Illi- S.Ct. 43 L.Ed.2d justice application tration of of a retroactive 458, 467, nois States, the new standards.” Desist (1973); 35 L.Ed.2d 425 id. at 244, 249, 1030, 1033, (White, J., dissenting); ex United States Walker, (1969); L.Ed.2d 248 Linkletter v. Nenna, F.Supp. (S.D.N. rel. Bland v. 618, 629, cert, aff’d, denied, (2d Cir.), Y.), 393 F.2d 416 (1965). (1968). (9th v. United 48 F.2d Cir. regard for all of constitutional pulous 1931). defendant. rights of the procedural 508-09, at 878. at agreement we are with the While rea- soning and conclusion of the district jeop- that the rule makes clear Crist court, granted the relief there is is jury sworn

ardy as soon as attaches are, appropriate. We ac- circumstances not in line arbitrary exercise unable to affirm. We must va- cordingly, lynchpin as the but rather “serves drawing judgment below and remand cate the for jeopardy jurisprudence” all double for judgment affording of a new consideration the constitutional integral part of is “an appropriate relief. jeopardy.” guarantee at developed argument It at oral that Mizell custody from sum, Judge expi- Nicker- had been released In conclude we argument, the federal rule his sentence. After we decided that ration of properly son appli- been made in Downum had were advised that date of release was set forth any Benton. entry states September cable to the well before applied event, Crist should we believe below. There is some indica- retroactively. tion that was made known to Nickerson, but was evidently he not con- remaining only question he scious of fact when made deci- first whether The award of relief was as sion. follows: necessity. manifest necessitated petition corpus a writ of habeas “The 467-68, U.S., Somerville, supra, granted.” again agree with the dis S.Ct. 1066. We exist no circumstance trict court that such of relief The award was somewhat contin prosecutor asked ed here. The corpus, writ inexact since the of habeas Monday. There was indica until uance (28 historically and under the statute U.S.C. would of the two witnesses tion that either 2243), securing of is means the § fact, the by Monday. be unavailable hearing. After petitioner’s body for the that the could request indicate State would hearing, if detention is found be to unlaw attendance at reasonably predict their ful, an the relief awarded is order that Moreover, Monday that on the fact time. be If petitioner released. detention for trial indicates moved prosecutor the lawful, deny is to found to be decision irretrievably were not the witnesses requested petition. in the In ei the relief the court given by only lost. The reason case, (if all) at the writ itself issues ther grant to a continuance failure for the hearing; by the time of the before the The jury. of the the convenience decision, the function of writ been sequestered however, and had not been Sokol, Corpus Federal Habeas exhausted. required have them would not continuance 1969). (2d ed. 36-37 This appointed term. beyond their to serve by of granting The the writ dis since significance special fact is of “[t]he only in case at bar can be trict court before it discretion to interpreted as order that Mizell be re verdict is to be exercised has reached a shorthand, lawyers “As a sort of leased. extraordinary very striking and cir ‘only in expression judges frequently use and . Downum v. Unit . . cumstances’ equivalent the writ’ as if it were ‘granting U.S., States, at 83 at 372 supra, ed Sokol, requested.” relief granting to 25 Coolidge, United quoting petition at 37. Mizell in his supra, Ct., (Cir. Fed.Cas.No.14,858, 623 pp. custody, nothing from and asked for release circumstances D.Mass.1815). Under these more. nor justice” public the “ends of neither of A But at the district court’s a mistrial. time necessity” required “manifest order, custody longer in and Mizell was granted. been See should have continuance States, of prayer his for the relief release supra; Gomero v. United 948 Ellis, (1971), U.S. 92 30 413 Were Parker

therefore moot. (1960), Ross, vacating remanding 4 L.Ed.2d 963 80 S.Ct. Wood U.S. law, (4th required 1970); F.2d 297 Cir. good still we would to Pinneli v. Cau- thron, (8th 1976); appeal as Parker v. El- dismiss this moot. 540 F.2d Cir. Grandi- however, law, Warden, lis, (D.Md. good having is not son v. F.Supp. LaVallee, 1976); Florida, Carafas v. Bentley F.Supp. overruled U.S. (1968). Sokol, (S.D.Fla.1968). 20 L.Ed.2d 554 supra, See also at custody was in at Since Mizell state 78-80. application

time he the district filed Judgment appealed from vacated. The 29, 1976), jurisdic- federal (November court cause is remanded to the court district release of tion “is not defeated consideration a new judgment affording prior proceed- petitioner completion appropriate relief. LaVallee, . .” ings . . Carafas at 88 S.Ct. at 1560. basis for U.S. FRIENDLY, Circuit Judge, concurring holding is the Carafas that: dubitante: does not the relief statute limit I concur on the basis holding that our discharge of may granted appli- only that since indications were that the physical custody. Its cant from mandate prosecution two witnesses were who absent respect with is broad relief that on Thursday would be on Monday, available granted. provides It may be “[t]he judge have granted should the continu . . . dispose court shall mat- prosecutor ance which the requested and justice ter require.” as law 28 U.S.C. discharged should not have jury. Even § as so limited this seems to me an exceeding at at U.S. ly It close ease. differs from Downum v. Supreme Court then notes that amend- States, corpus ments in 1966 habeas statutes (1963), and Cornero v. Unit (for 2244(b)) “seem example, U.S.C. § (9 ed 1931), 48 F.2d 69 Cir. contemplate specifically possibility approval Downum, was cited with in that relief other than release from immediate prosecutor those cases the neg had been custody.” at physical (see Downum, ligent at 1560. S.Ct. at Mr. Justice Clark’s discus Cornero, n.*, sion may wish for such Mizell to ask other n.*), September 10, at 1036 relief. The conviction of whereas here he everything did subject may humanly possible him to assure presence to “disabilities or (Fis actually having wick v. witnesses short of burdens” United them 224, 211, 222, impaneling the courthouse before S.Ct. L.Ed. 196 a often (1946)) consequences” consuming process to a time and “collateral the New 629, courts, York, holding v. New York (Ginsberg 390 U.S. 633- the witnesses in 1274, 2, (1968)). custody 34 n. course no one could rea —a sonably prosecutor below must be vacated advocate. The initially so continuance; sought may apply other a he for Mizell for such relief. asked a dis charge jury only We leave it to the district court to deter when the court’s refusal of this left him granted. mine what relief should no We alternative. Moreover, grant the court’s possibility note the of a declaration that refusal 10,1971 or, continuance September solely I read conviction void and of as record, even “the respondent Attorney preponderantly an order to Gener for conve jury”; nience of the after apply discharging al to the New York courts for a jurors, for an directed report vacatur of conviction and order court them to room, back expunging and all references to it from to the central where they precedents. the records. There are few would be available for important other Furthermore, seems to arisen in the duties. problem have while in the luminous Rice, Bretz, v. following hindsight cases: North Carolina Crist (1978), 57 L.Ed.2d Neil, Robinson SEIBERT, Plaintiff-Appellant, V. Jo that the (1973), we now know 35 L.Ed.2d attach- respect with rule New York displaced been ment RAND SPERRY CORPORATION and Benton working combined Finley, D. James 784, 89 Maryland, Defendants-Appellees. busy (1969), state trial No. Docket 78-7186. lacking such hardly be faulted can judge defense counsel especially when prescience, of Appeals, enlighten him save nothing to contributed Second Circuit. If a exception. noting an unelaborated clearly ar- jeopardy claim had Argued June ticulated, well have acted judge might that decided The same Court Decided Oct. otherwise. my Mulligan has brother cases cited being too courts federal

warned judge’s trial with a state

quick to interfere designed imple- determination

“rational when there policy” legitimate state

ment suggestion implementation “no a mistrial policy” by declaration of

of that prejudice as to manipulated so

“could defendant,” 35 L.Ed.2d (1973), and has instructed not describe necessity” “do “manifest

words mechanically applied can be standard prob- particular

or without attention judge”, Arizona v. confronting

lem Washington, 434 U.S. (1978), also id. see 54 L.Ed.2d n.35. The fn. of a double characteristic drastic

especially this, like case

jeopardy determination is entitled not the defendant

namely, that to be relieved of new trial but proceed appellate court to requires an any, here, when, caution, particularly

with prosecutorial or suggestion

there is my suspect I brothers

judicial abuse. if Mizell this case differently about

feel a life sen- year the first serving

were being than liber- murder rather

tence for sentence; completed yet ty having after tt.s same. the test should be theory

in strict gone here I we have believe

In short it. beyond verge perhaps

very

Case Details

Case Name: James Mizell v. The Attorney General of the State of New York and Ano.

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 30, 1978

Citation: 586 F.2d 942

Docket Number: 227, Docket 78-2059

Court Abbreviation: 2d Cir.