449 F. Supp. 360 | N.D. Ill. | 1978
Memorandum
This petition for a writ of habeas corpus, and respondents’ motion to dismiss, require the court to determine whether United States ex rel. Baker v. Finkbeiner, 551 F.2d 180, a 1977 ruling by the Seventh Circuit Court of Appeals, is a decision that has retroactive application. The issue presented is whether Baker declared a new rule of law or merely followed legal principles which were well known and established.
I.
The facts in Baker v. Finkbeiner disclose that on January 24, 1974 Theodore Baker, in accordance with a plea agreement, pled guilty in the circuit court of Will County, Illinois to a charge of armed violence and one that he had violated the Hypodermic Syringes Act. The punishment in Illinois for violation of the armed violence statute was imprisonment of one to three years, followed by two years of mandatory parole; and for violation of the Hypodermic Syringes Act, a maximum of one year. The trial judge ratified Baker’s plea agreement; and accordingly sentenced him to concurrent terms of one to two years for armed violence; one year for violation of the Hypodermic Syringes Act. However, neither he, defense counsel, nor the prosecution attorney, told Baker that in addition to the sentences imposed, he had to serve two years on parole after his terms of imprisonment.
Baker served eight months of his sentence, was credited with two months of jail time, and on September 23, 1974 was released on parole. On November 17, 1974, he was charged with and later, on March 3, 1975, declared a parole violator. While in prison on this status, he filed a petition for writ of habeas corpus in this court, claiming that not having been informed of the mandatory two-year parole term when he pled guilty, his being in custody on the authority of that parole deprived him of due process of law. The district court denied the petition, and Baker appealed.
In the court of appeals, the state argued that an earlier decision of the Seventh Circuit, Bachner v. United States, 517 F.2d 589 (7th Cir. 1975), barred Baker’s attack on the validity of his guilty plea because he could not demonstrate that the mandatory parole would have deterred him from pleading guilty, or the two-year parole was a factor so insignificant that even if he had been informed of it, he would not have refused to plead guilty.
The court rejected this argument; and in doing so, it relied on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
II.
The facts of this case
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court decided that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) was not a retroactive decision. With this ruling , the Court started a trend of refusing retrospective application to new constitutional standards in criminal cases.
The first reference to this “new rule threshold test” is found in Mr. Justice Stewart’s dissent in Milton v. Wainwright, 407 U.S. 371, 381-82 n.2, 92 S.Ct. 2174, 2180, 33 L.Ed.2d 1 where he said that “[a]n issue of the retroactivity of a decision of this Court is not even presented unless the decision in question marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent, ... or disrupts a practice long accepted and widely relied upon . .”
U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) was retroactive since the case, as the Ninth Circuit saw it, neither “ . .. overruled past precedent of the Supreme Court nor disrupted long-accepted practice rather, it reaffirmed well-established Fourth Amendment standards . .” 500 F.2d at 988. Thus, the court of appeals granted relief to the defendant before it because it thought the case it was construing represented Fourth Amendment principles never deviated from by the Supreme Court. 500 F.2d at 989.
The Supreme Court disagreed with the Ninth Circuit in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), not because there was error in determining whether the new rule threshold test applied; but because, in the opinion of the Supreme Court, Almeida-Sanchez pronounced a new constitutional doctrine. It is worth noting, however, that Mr. Justice Brennan objected to the majority’s holding on the ground that Almeida “ . .
presents no question of [retroactivity; it] applied familiar principles of constitutional adjudication announced 50 years ago.” 422 U.S. at 544, 95 S.Ct. at 2321.
From these cases, the guidelines for
determining when new doctrine is pronounced can be discerned. A decision is not a new rule unless it clearly overrules past precedent, or disrupts a practice long accepted and widely relied upon. If a decision does not overrule past precedent, the factor to be weighed in determining if it disrupts a long practice is whether there is “ . . .an avulsive change [in] the cur-
rent of the law.” 422 U.S. at 544, 95 S.Ct. at 2321.
When these principles are applied to Baker v. Finkbeiner, it becomes apparent
For these reasons, respondent’s motion to dismiss the petition for writ of habeas corpus is denied. And since the record of petitioner’s change of plea shows he was never advised about the five-year mandatory parole, deprivation of his liberty on authority of that parole denies him due process of law. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977); see United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977). Therefore a writ of habeas corpus will issue, directing that respondent forthwith release petitioner from custody. Palermo v. Oswald, 412 F.Supp. 935 (D.C.N. Y.1976), aff’d 545 F.2d 286 (2 Cir.); United States ex rel. Codarre v. Gilligan, 363 F.2d 961 (2d Cir. 1966).
The court acknowledges, with gratitude, the valuable assistance it has received in the preparation of this Memorandum from Stewart Welt-man, a third year student in The John Marshall Law School of Chicago. During this academic year, Mr. Weltman has served, without pay, as an Extern in this Chamber; and the quality of his work reflects the fine legal education he has received and his potential as he prepares to enter our profession.
. Since respondents have moved to dismiss, petitioner’s allegations will be assumed to be true. United States ex rel. Rooney v. Ragen, 158 F.2d 346 (7th Cir. 1947), cert. denied 331 U.S. 842, 67 S.Ct. 1532, 91 L.Ed. 1853; Williams v. Estelle, 416 F.Supp. 1073 (D.C.Tex. 1976).
. See Ill.Rev.Stat. 1971, ch. 38, § 18-2, compare Ill.Rev.Stat.1973, ch. 38, § 1005-8-l(e)(l). It is clear, therefore, that the 1973 change in Illinois law increased the possible punishment for armed robbery by the requirement that the sentenced defendant, in addition to the term of imprisonment imposed, serve a mandatory five-year parole.
. The court will dispose of this controversy on the issue thus raised. However, it acknowledges petitioner’s contention that application of
. Until Linkletter the Supreme Court had always applied new constitutional criminal procedure decisions retroactively. See Linkletter v. Walker, 381 U.S. at 628, n. 13, 85 S.Ct. 1731; Note, Applications of the “New Rule” Threshold Test Before Determining the Retroactivity of Almeida-Sanchez, 53 Tex.L.Rev. 586, 587-588.
. The process by which it is determined whether a decision has created a new rule of law has been coined the “new rule threshold test.” See, Note, Applications of the “New Rule” Threshold Test Before Determining the Retro-activity of Almeida-Sanchez, 53 Tex.L.Rev. 586 (1975).
. Mandatory parole became part of Illinois law in 1973. See Ill.Rev.Stat. ch. 38, § 1005-8-1(e)(1) (1973). In 1975, the Supreme Court of the state held that as a requirement of due process trial judges had to admonish defendants, if it were applicable, that the sentence to be imposed after a plea of guilty was subject to a mandatory parole. See People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505.