Roger Fain v. Ed Duff, Etc.

GEWIN, and Before AINSWORTH Judges. MORGAN, Circuit Judge: MORGAN, R. LEWIS Circuit Roger Sixteen-year-old ar- Fain was 12, 1970, November rested Volusia breaking Florida, County, for into raping home and Elev- a woman her. days adjudged en later Fain delin- by days quent Nine court. grand juvenile proceedings, after jury charging returned an indictment rape. Fain with the criminal offense of reject- After state courts of Florida argument prosecution ed Fain’s rape him for would violate the former jeopardy clause of the Fifth Amendment Constitution, to the writ obtained a corpus of habeas from the United States District for Middle District of appeals Florida. state now granting of the writ. affirm. complicat- this case involves statutory ques- ed constitutional and tions, simple undisput- the facts are and Roger 12, 1970, Fain, On November ed. then aged years sixteen and nine months, was arrested Ormond Beach police alleged rape officers for the day Mary before of Frances Oswald County, days Volusia Florida.1 lat- Five sys- er, a counselor of the court petition tem filed a court alleging delinquent that Fain was a having child reason assaulted raped Mrs. Oswald.2 On November 1970, hearing was held in the Volusia Ray- Shevin, Atty. Gen., Robert County L. during Court, Juvenile an Marky, Atty. Gen., mond L. Asst. Talla- attorney appeared assistant Fla., hassee, Tanner, urged John judge W. Asst. jurisdiction to waive Fla., Atty., 7th Judicial Circuit certify the circuit court.3 39.03(1) (b) police 1. F.S.A. prescribes procedures allows a officer § 3. F.S.A. 39.09 § for “alleged arrest to have bearings. (a) who 39.02(6) venile court F.S.A. committed a violation of law.” provides may, judge hearing, after a transfer a child who is specifies procedures 2. F.S.A. § 39.05 fil- for years petitions ing juveniles or older to the court which would “in the interest of” jurisdiction courts. if over the child were hearing argument ques- petition After for a writ of this filed habeas cor- pus Florida, tion, judge juris- in the Middle District of declined to waive hearing diction, and a held and com- before found Fain U. S. District Youth Court on November 1972. mitted him the Division of January 15, 1973, period district not On for an indeterminate Services requested birthday.4 beyond issued his 21st Fain. extend appeal February notice of state filed a Fain has Since November 1973. mained Division Youth Dozier at the School Services questions Three confront us Boys. appeal: juris- Did the district court have On state attor- December application ney diction Fain’s to entertain Judicial Circuit the Seventh urged corpus stay a writ ? of habeas оf order of or execution its the issuance 2. court correct Was the district commitment; the did not do so. determining actions the the of day, The next an indictment was jeop- of the former violate State Florida alleging turned the same acts on which ardy Amendment, clause of the Fifth adjudication delinquency the was based.5 applicable by the the made states to later, Two on December weeks Amendment ? Fourteenth urged juvenile attorney the state the district court correct 3. Was jurisdiction.6 relinquish court to determining actions Judge court, violate Fourteenth of Florida In the circuit Circuit of fundamental Amendment notions Melton Judicial Circuit and Seventh against Fain ? indictment fairness dismissed the grounds 7, 1971, January appealed jeopardy. to I The former Appeal, District First court, federal all eases As Judge ruling on Melton’s which reversed question we ad to which must the first August F., R. E. 1971. State jurisdiction dress ourselves is that (Fla.App.1971). The Su- So.2d 672 statute, by there no provided is if preme Florida affirmed Court of jurisdiction, mer determination stayed appeal, mandate court of its parte Ex Mc of a is its futile. any pursue remedies to allow Fain to Cardle, (7 Wall.) 19 L.Ed. 74 U.S. might F. v. in federal court. R. E. Bollman, (4 (1869); parte Ex (Fla.1972). Crаnch) (1807). State, Fain In this 2 L.Ed. 554 So.2d jurisdiction is, rape charged to waive The decision forcible adult. indictment by implication, of the left discretion violation 794.01. § of F.S.A. judge. court 39.02(6) (c) provides: § 6. F.S.A. 39.01(11) (in 4. effect at time is returned § F.S.A. When an indictment occurred) grand jury charging “delin- defined the term with these events a child punishable by quent law child” as follows: a violation of Florida imprisonment, “Delinquent death, punishable life child” means child who com- jurisdic- law, regardless of where without a violation of court shall be mits occurred, except tion, made, charge a child who will be and the violation and the every resрect handled, ‍​​​​‌​‌‌‌​‌‌​‌​​‌​‌​​​​​​​​​‌​‌‌​‌‌​​‌​‌‌​​​‌​‌‌‍whose traffic offense and child shall be commits been transferred to the if he case has not were an adult. jurisdic- having Nevertheless, the court court it is clear venile court adjudged jurisdiction when it had of the case tion. powers 39.11(2) (b) delinquent. Fain to F.S.A. enumerates be § juveniles respect provides, part: 7. The Fifth Amendment delinquent. adjudged it has “ any person subject . . shall . nor put petition jeop- alleged rape twice offense to be same dangerous aggravated weapon. ardy . . .” assault with of life or limb . case, jurisdiction petition present- Fain asserts undеr 28 at time was 62-63, U.S.C. 2241.8 We must therefore de ed. Id. at 88 S.Ct. 1549. permits if that the dis termine statute In this case we have a situation grant trict court writ. stat analogous to the consecutive sentence ute iself contains no definition of problem Peyton. Fain now com corpus. To its term habeas ascertain mitted to the au meaning appropriate and the use of the thorities, where he will remain even aft courts, recourse must be federal er he obtains the writ. But uncontested law, from had common to the hearing evidence introduced Hill, McNally term drawn. district indicated that condi The traditional tions of commitment sub inquire into use Writ was the Great stantially rape different in absent prisoner pur the detention of a for the dictment. pose commanding his release if that Fain is now incarcerated at the Dozier contrary to detention the law. See Boys in Marianna, School for Florida. Developments in the Law —Federal Ha Services, The Division of Youth how- (1970) Corpus, beas 83 Harv.L.Rev. 1038 ever, authority has the him release Wechsler, H. H. Hart and The Fed society when it would benefit System, eral and the Federal Courts 2d Williams, super- to do Lenox so. Mr. E. purpose Ed. 1426-29. The school, intendent testifiеd at the validity this writ examine the hearing that, could have left “If [Fain] any judgment, merely of inquire to the institution the of without threat legality Fay into the aof detention. v. being jail thrown in . . . [w]e 391, Noia, 822, 9 372 83 U.S. S.Ct. go.” would have let him The district Thus, (1963). L.Ed.2d 837 an obvious found “that the authori- prerequisite to the issuance aof writ is opinion petitioner ties are of the that detention, custody. has been rehabilitated and the authori- Notwithstanding the traditional re- prepared are ties to release him but for petitioner quirement the be in must probability the that his release from the custody issues, McNally when the writ v. Boys simply Dozier School Hill, suprа, country law in the this has County in sult his re-arrest Volusia considerably in been broadened strength judg- authorities of the significant area. This most relaxation Court, Supreme ment of the Florida of the detention standard in occurred [footnote omitted.]” Peyton Rowe, 391 88 S.Ct. Thus, “custody” Fain’s is even more Pey-. (1968). In 20 L.Ed.2d 426 apparent Peyton, than that of since the ton, Supreme permitted the Court outstanding existence of the indictment prisoner the two to attack second of con- merely not more threatens him with in- secutive before the had sentences first future, carceration the it has sub- Although expired. petitioner the had present stantial on his circum- effect begun yet allegedly ille- serve the to fact, In is stances. indictment gal sentence, practi- the Court held that present sole cause of his confinement. history cal considerations of custody prompt adjudication The that Fain is writ as a means fact of permitted consider of authorities district to of complained provides part: district wherein the restraint of § 2241 U.S.C. is had. (a) corpus may granted of habeas Writs Supreme justice Court, any thereof, (c) corpus shall not The writ of habeas any judge district courts circuit prisоner to a . extend unless respective jurisdictions. within their custody (3) He is violation of Con- order aof circuit shall be entered or. of the United stitution laws treaties in the records of the of the district States. coupled Florida, of with the likelihood relief denied of was because of being processes released in discretion of his failure exhaust to authorities, state, us those convinces case reaffirms the traditional custody requirement remedy 2241 has been notion the federal § habeas amply complied corpus This with in this is ease. available vindicate to constitu holding ‍​​​​‌​‌‌‌​‌‌​‌​​‌​‌​​​​​​​​​‌​‌‌​‌‌​​‌​‌‌​​​‌​‌‌‍any rights way illegally involve a does tional citizens held “stretching” requirement custody custody. Supreme of the last liberty statute, is re- for Fain’s reaffirmed term this traditional use manner strained in a which can the writ. Braden v. 30th Cir Judicial Kentucky, should issuance of the be basis cuit Court 410 U.S. concepts (1973). traditional under even the most L.Ed.2d In S.Ct. Hensley Municipal custody. Cf. Braden to the writ was used enforce obligation Kentucky’s Court, affirmative provide petitioner speedy L.Ed.2d Although petitioner in custo trial. was argues must The state that Fain petition, physi dy the time of his that his confinement also demonstrate Ala cal State of judgment pursuant a state Kentucky, pe bama, not the state which alleges that court.9 But Fain nowhere alleged depriving him his titioner and, petition falls within against rights. writ” obtained a Braden fact, it does is obvious that Sec not. Kentucky before trial officials regulate 2254 was enacted tion that state.12 corpus use of for collateral at habeas proceedings. It criminal tack on state also advances several state no relevance One has to this case. arguments timing related to the the writ traditional roles of forum. These resort federal Fain’s prevent liberty, wheth lawlеss denials of grouped loosely under the term can be legisla perpetrated by executive, er The exhaustion “exhaustion.” govern judicial tive or branches requirement Ex remedies is based on military.10 Traditionally, ment, or the supra. Royall, parte Royall, in usage very in had wide has a writ require decision to exhaustion was government testing kinds of lawless all in the district left the discretion post-conviction use as a Its actions. requirement court, soon became wrongs during remedy perpetrated for jurisdictional With re known as a one. relatively In is criminal trials recent. spect on collateral attack convictions to allowing fact, federal habeas the statute requirement court, in state was codi corpus on criminal convic attack state 2254(b), in re fied 28 but U.S.C. § prior to even in tions was not existence applies corpus quirement to habeas all parte Royall, U.S. In Ex 117 1867.11 actions. 241, 734, 868 29 L.Ed. clearly ex The Braden recognized power Court Justice Harlan plained and ra prisoner the various foundations to release a federal requirement. undergone the exhaustion tionales of trial. a state who had not February 28, Judiciary 5, 1867, provides:. 2254(a) с. 11. Act of 9. 28 § U.S.C. 1, thereof, Supreme Court, 14 Stat. 385-386. a a Justice judge, en- or a district court shall circuit question Appellant’s read to brief be application a writ of habeas an for tertain authority for the District Court custody pur- person corpus of a behalf adjudicate Fain’s of Florida to District Middle judgment a State court suant to Duff, including propriety claim and custody ground in vio- he is on the Sheriff, County Both as a defendant. Volusia trea- or the Constitution laws lation of now who authorities and the Fain ties the United States. Dis- are in the Northern him in hold Any questions Wechsler, an- in this area are trict. Federal 10. See H. Hart H. supra. by Braden, System, 2d Ed. swered and the Federal Courts (1973), 1426-29. 224 right prose- a to be free from a second 93 35 L.Ed.2d U.S. S.Ct. punishment stated, cution, merely Briefly doctrine a second at 449-451. respective (though

preserves roles is ob- of state for same offense governments viously right.) pro- un- federal and avoids included sovereign necessary Jeopardy between hibition Double Clause collisions against being punished, powers. vindicate is twice are allowed to “not States orderly against being prompt put jeop- ad- their interest twice ardy.” Ball, justice, while federal United ministration of States v. 662, 669, upholds responsibility L.Ed. 300 judiciary to its S.Ct. (18 (1896); parte Lange, illegitimate prevent Ex the exercise of au- U.S. (1874); Wall.) However, thority. federal-state tensions 21 L.Ed. gratuitous States, United be exacerbated Green v. should not 221, in state criminal L.Ed.2d 199 federal interference S.Ct. proceedings. analogized Again, Brad- can this be to en. The in Braden issued en- writ to case, of Florida In this courts speedy petitioner’s right to a trial. force promulgate opportunity a an to have had noted, Surely, the Court lack as ruling question final, definitive speedy a defense trial would have been Supreme The Florida Court involved. presented trial, appeal, to be on authoritatively in the context stated has post-conviction proceedings. Neverthe- repros- opinion its less, approved to en- petitioner not violate ecution of the will obligation force the state’s affirmative jeop- right placed in not to be twice bring Here, Braden trial. it is nothing ardy. There is 265 So.2d 701. obligation affirmative seeks to Fain say Florida to more the courts enforce, prohibition. just But it this issue. right speedy trial, in the case objected resort It be vindicated one which can and should be unnecessary federal forum is because waiting state decides without until petition corpus relief could habeas Fain, is the For conduct trial. brought ‍​​​​‌​‌‌‌​‌‌​‌​​‌​‌​​​​​​​​​‌​‌‌​‌‌​​‌​‌‌​​​‌​‌‌‍court, the trial state after right left alone which he seeks to leaving open possibility that a thus against enforce of Fluida. the State finding guilty in of not cor- make resort to federal habeas II pus unnecessary. the ob- In addition to question turn now to delinquency servation that rape prosecuting vio- whether possi- by the court makes this rights under the Constitution. lates certainly unlikely (though in- bility not argues placed only he was not Fain that important conceivable), more consider- jeopardy in in the court —he position. refutes this ation punished. is a convicted and His asserting try him merely To plea of convict. Fain is not autrefois subject again only him to the prosecution. not defense to a state would federal judicial right asserting additional of an He is a constitutional harrassment subject put jeopardy proceeding, him to the the also to be twice for but not punished Although being jeopardy for twice same offense. double risk of Therefore, reprosecution (if shown) certainly proper same offense. concep- post- violates both trial and of him adult defense to assert at as an right proceedings, and tions fundamental fairness con conviction against having protection double Constitution’s sists of more than second pro- applicable jeopardy, in state It consists made conviction set aside. having undergo ceedings by being Amendment. protected Fourteenth from rigors dangers 784, 89 S. Maryland, Benton v. 395 U.S. a second —ille gal jeopardy L.Ed.2d is not a Double Ct. —trial. (1) charge; it is of Florida contends since mere criminal defense to a ju status as a B. Does Fain’s juvenile proceedings criminal not were asserting jeop- prevent dou put him from nature, venile Fain never in ardy; juvenile proceed- jeopardy criminal as a defense (2) ble prosecution if even rape? placed ings Fain held to are right juvenile, he has no jeopardy, as a argues that in McKeiver The state again; jeopardy placed in not to be Pennsylvania, 1976, 403 U.S. apply is fun- (3) standard to the correct the Su- L.Ed.2d fairness, funda- and it is not damental juveniles preme protected not held that are an mentally prosecute Fain as unfair to guarantees all rape. for the adult rather, applicable Rights, Bill of one to use cases standard of fundamental fairness. jeop placed in A. Was proceedings? ardy in the argument This com- 91 S.Ct. 1976. disputed that a It cannot be holding pletely in Mc- misconstrues the may, court juvenile Florida dealt Keiver. the Court there signifi- impose delinquent, to be rights juveniles in may liberty. He restrictions on his cant proceedings. we Here have a su- . . under the “Place a child . prosecution. a criminal threatened with agent pervision of an authorized indicting him, ex- By the state has youth services division pressed him in all re- a desire to treat . child- the child to a Commit caring . . any ques- spects Is there an adult. as . institution . . Commit proposes to the state now tion that since youth services child to the division subject powers him to the . .” F.S.A. 39.11. . . adult, it must now accord it would an Youth commitment to Division of rights procedural him all being may in the result Services has? adult home, to his it allowed to return juvenile, al- mere status as a Fain’s until also result incarceration juris- though may subject him to the to the division commitment Fain’s sulted from his entirely different court having of an diction system, found delin- been rights deprive being him of quent. cannot And his found justice enjoy in criminal having adults violated resulted from his рunish system. If Florida wants Florida. of the State of criminal law give adult, him all 39.01(9). it must of Fain as an Thus, a violation F.S.A. § rights need not an adult. directly law result the criminal rights example at all with Fain’s deal This is a classic incarceration. of system, now is venile “jeopardy.” system, system. inAnd adult court argument purpose The state’s per- that no command the Constitution’s of the commitment is rehabilitative jeopardy placed twice son shall be punitive change does its nature. applies. unquestionably the same offense authority prop- No osition that a court should look labels gardless be cited for the need past being placed in Is Fain C. to the Re- substance of an action. by the jeopardy offense” for “the same purposes for which rape indictment? imposed, incarceration re- re- the fact guided by an inquiry are mains we that it is incarceration. The In this goals system similar court in a decision of this habilitative are ad- earlier case. (5 Beto, mirable, they change 216 v. 396 F.2d but do not In Hultin 1968), held that the State In- this court drastic nature carceration produce the action Cir. taken. of fundamental notions adults is also intended of fairness violated Texas person proсeed- punishing rehabilitation. A court ing already committed which result in incarceration it had crime after he places person, juvenile, juvenile in adult authorities because him to in jeopardy. acts Dickerson the same which the United States v. committed dictment Hultin, (D.D.C., 1958), charged. Here, F.Supp. 899, rev’d as in 168 grounds charged U.S.App. (1959), the defend on other D.C. that the indictment 487; engaged Superior exactly actions F.2d in same ant M. hearing ju County, proved in Court of Shasta Cal.Rptr. 4 Cal.3d which were venile judge court, consid- 482 P.2d and which committing argument juvenile in in the two reasons. ered This First, Hultin, fails for Fain, at- procеedings. is state earlier especially In case it in as in this being prose- torney juvenile objected court clear that Fain to the is offense,” judge’s taking jurisdiction he over cuted for action in “the same because ju- adjudged delinquent by juvenile. importantly, was having reason More state, judge law court violated same criminal venile acts attorney being just It can- for is even Florida, now This the state does. that the state which he is indicted. as seriously case a clearer than Waller contended pro- delinquency 25 played S.Ct. no role in the L.Ed.2d 435 in which the Court ceedings. Everything delin- about the municipality held that for a State and a proceedings quency controlled prosecute to both commit- someone for juve- authorized state statutes. ting the same acts double violates the judge may acted without nile court have jeopardy Here, clause. we not addition have attorney’s of- of the state the consent sovereign, the same we have in law, existing fice, Florida under exactly being punished acts same proper. The state such an action was exactly the same elements each delinquency proceed- particiрated in the Thus, prose- being offense. Fain is now ings case, just it did in Hul- in this uted for the “same offense” tin. adjudged ‍​​​​‌​‌‌‌​‌‌​‌​​‌​‌​​​​​​​​​‌​‌‌​‌‌​​‌​‌‌​​​‌​‌‌‍delinquent juve- he was in the Finally, ju- proceedings. the state contends that nile judge venile court abused his discretion Fain after Ill attorney judge state his informed the of grand prosecution Does of Fain as an present desire case to adult for the substantive criminal of jury. existing law, Under Florida how- rape fense of violate notions of “funda ever, jurisdiction the decision to take mental fairness”? by juveniles over felonies is committed opinion Beto, This court’s in Hultin v. entirely ju- left in the discretion of thе supra, provides guidance in definitive judge. nothing venile court There is answering question. merely fol- need hear indicate even answering low Hultin in in the affirma- arguments attorney the fore be- argues tive. Florida that Hultin is dis- making decision, much less tinguishable grounds arguments. bound those It true is prosecution Texas statute forbade jurisdiction that over a court loses veniles for offenses, substantive while after an indictment jurisdiction Florida concurrent exists. But in this an in- handed down. case Thus, Texas had to Hultin wait until was not down aft- dictment handed until reached prosecuting before him. juris- er the court had invoked timing different, If the had been Fain de- diction and committed Fain to the prosecuted immediately could have been partment youth court services. The adult, as an in which case the jurisdiction over when it made had Fain jurisdiction. court would have lost over commitment, we are uncon- 39.02(6) (c). him. F.S.A. § procedures improper tha.t vinced unpersuasive. We find this distinction engaged deprive the state of were any problem in this case is Florida prose- had in it interest failed to indict Fain before cuting as an adult. judge adjudged delinquent. him foregoing demonstrates discussion deprive That it could jeopardy placed in the that Fain jurisdiction some other proceedings, and that quickly which it acted more is of no con- again placed jeopardy now sequence a case which it failed Judicial for the Seventh Circuit do so. The Con- offense. for the same Circuit argues every Florida also that made an action permit such does stitution bring adult, effort to Fain to trial as an to occur. Hultin, participated while in the fully delinquency proceedings. Affirmed. the child who a (dis- see whether Judge courthouse commits AINSWORTH, Circuit the capital under offense a senting) : prosecu- escapе may of Florida laws opinion Flor- of the The well-reasoned hurry- by a the criminal tion in Appeal, District First of ida Court juve- proceeding in the up delinquency J.), (Wigginton, So.2d guilty pleads nile court which Supreme by Court matter, the affirmed adjudication objection to an enters no denied Florida, 265 So.2d of delinquent child finding him to abe plea held that jeopardy the double offense which of the criminal because he committed. fair- of fundamental no denial there was can maneuver If such herein, fully reflects minor ness to the successfully accomplished, un- then be der my my for dissent. views and reasons by appellee theory the advanced Judge excerpts from pertinent Some subsequently may never be the child Wigginton’s fol- opinion for the Court prosecuted criminal court low: even he has committed the offense 39.02(6) (a), F.S.A., of though period F.S. Section of time he juvenile permissively au- lawfully the thorizes a court act of confined juvenile judge go its waive of Youth Division Services brought jurisdiction proceeding age. year of beyond his 21st against juvenile years age at 675. Id. So.2d forming if older the child’s the act basis significance It is of here that in Mc alleged delinquency would Pennsylvaniа, 403 Keiver v. felony constitute a under the laws 1976, Supreme L.Ed.2d 647 Florida. court shall court which would have In this event said that certify the case to the proceeding “the has jurisdiction of yet prosecu been held to be a ‘criminal the child if he were an adult. F.S. Though tion’.” nal ings, there are crimi definite 39.02(6) provides (c), F.S.A., Section aspects delinquency proceed to child indictment that when an by any is returned 16-year-old juvenile here has grand jury charging a child of by any never been tried court for the se age with a violation of Florida capital rape. rious true offense of It is by punishable im- dеath life law or court shall be adjudicated that the de was prisonment, the linquent by the Florida Juvenile Court jurisdiction, and the child without shall be handled upon on the basis of the every respect same facts if subsequently which he was indicted for an he were adult. felony, properly but it held cannot Appellant invites the court’s atten- delinquency proceeding consti tion in to the fact that prosecution tuted a criminal so as hearing, judice held a the case sub prevent felony trial of the case in relinquish jurisdiction and refused to majori proper court. Florida state adjudged appellee delinquent to be a holding distinguish ty’s attempt period six child the short within unconvincing. peti- days in McKeiver is from the which the date counselor was tion filed by majority Hultin citation in- in the court. Cir., Beto, F.2d returned dictment this case was Wigginton’s Judge clearly inapposite as grand jury days within 12 there- Hultin, 16- opinion demonstrates. after, had the indictment been adjudged year-old minor, a delin- prior turned to the date on which quent murder. and a child for assault adjudged appellee juvenile court to be Texas, of- where the law occurred, Under committed him child and may be tried minor fenses no to the Division Youth Services at- has offense unless he for a criminal Florida, then the State attempt age of 17. tained jurisdiction of court would have lost prosecute Hultin of Texas to the provisions virtue of the the case attained murder he thereafter for the law and violated tal when 39.02(6) (c), If F.S.A. F.S. Section obviously contrary of 17 position appellee is sus- principles fundamen- stage tained, appear would hand, other On the fairness. for a race to then be set 228 age minor, years Florida, old- 14 of a ON FOR REHEAR- SUGGESTION ju- any felony er, if the be tried EN BANC ING jurisdiction, relinquishes court venile a child PER CURIAM: age be tried A of the serv- member active upon capital case indictment the and having requested poll ice the re- jurisdiction.

venile' court loses banc, consideration of this a ice not en and cause Appeal aptly Court of The Florida majority judges of the serv- active opinion in of its said in the conclusion having it, voted in favor this case: hearing en banc is denied. nothing find be- the record BROWN, Judge, Before and Chief reasonably fore us which can be said WISDOM, GEWIN, BELL, THORN- support to the conclusion reached GOLDBERG, BERRY, COLEMAN, ap- require trial that now court to AINSWORTH, GODBOLD, DYER, pellee to with answer the offensе SIMPSON, MORGAN, CLARK, RONEY charged which he is would constitute fundamental unfair- in the indictment GEE, Judges. and Circuit Judge, CLARK, whom Circuit adjudication ness. GEE, COLEMAN, and AINSWORTH him to child Judges, join, dissenting: Circuit having, for rape committed the offense undergirded coop- I dissent from court’s denial his full rehearing en banc. and resulted from eration his own urging timely objection over panel Judge dissent to the Ainsworth’s the criminal court authorities. If he puts jeop- opinion aptly ardy my views sufficiently mature at to adjudication ‍​​​​‌​‌‌‌​‌‌​‌​​‌​‌​​​​​​​​​‌​‌‌​‌‌​​‌​‌‌​​​‌​‌‌‍16 delin- effect feloniously forcibly rape quency. assault woman, appear mature it would Exceptional importance present is also sufficiently ap- he was mature to have because the court 30th Judicial Circuit Court of on Braden v. relies preciated unlawful character Kentucky, sufficiently responsible his act 1123, 484, L.Ed.2d 410 U.S. 93 S.Ct. 35 consequences. (1973), unprece to To authority answer for its for the 443 requirement corpus appellee make this dented use of the writ habeas prelitigate not, to constitutional defense would in the words of the federal prosecution. Hultin, state criminal def supra, With “violate those erence, cuts the ex across principles liberty fundamental justice press Supreme Court;1a сaveat at which lie our base all injunctive also hurls the effect political civil and institutions”. path corpus of habeas into the So.2d at Id. 251 680. pending proceeding, of this State contrary agree and the ra appellate I 28 U.S.C. 2283 with the Florida Younger Harris, tionale of 401 U.S. v. courts which had all facts and cir- 37, 746, (1971). 91 S.Ct. 27 L.Ed.2d 669 them, cumstances of this before that the minor has not been fun- held. denied required Braden a trial to be plea power damental jeopardy Today’s fairness and of double decision converts power require halt. should be denied.1 into the jeopardy 1. ; McDonald, (1946) doublе issue involved in this re 153 N.W.2d In 270 Dearing (D.C.Mun.Ct.App.1959) ; case has been before several state courts A.2d 651 plea 6, State, denied the under sim circumstances 204 983 v. 151 Tex.Cr.R. S.W.2d See, g., ilar to those here. e. v. Johnson State, Md.App. 105, (1967) ; 3 238 A.2d 286 nothing emphasize a. we have 1 We said Moquin State, 524, 216 Md. 140 914 A.2d pending permit the derailment of a ; (1958) Santillanes, In 140, re N.M. 138 proceeding attempt litigate con 503, (1943) People ; P.2d 510-511 v. Silver (cid:127) prematurely in federal defenses stitutional stein, Cal.App.2d 262 P.2d 656 our de court. The contention dissent ; (1953) Smith, In re 114 N.Y.S.2d 673 corpus into converts federal habeas cision (Dom.Rel.Ct.1952). Holmes, See In also re pretrial prisoners,” for state “a motion forum 379 Pa. holding. 109 A.2d wholly today’s de misapprehends cert. nied, Braden, supra, 75 S.Ct. 99 L.Ed. at at (1955) ; Smith, N.D. L.Ed.2d

Case Details

Case Name: Roger Fain v. Ed Duff, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 1, 1974

Citation: 488 F.2d 218

Docket Number: 73-1933

Court Abbreviation: 5th Cir.