On petition for writ of certiorari to the United States Court of
Appeals for the Sixth Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted.
The petition for a writ of certiorari is denied.
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice
BLACKMUN join, dissenting.
This Court has been asked to review a determination by a Federal
Court of Appeals that a state-court murder conviction was obtained
in violation of the Double Jeopardy Clause
Page 450 U.S.
936 , 937
of the Fifth Amendment. Because I think the conclusion of the
Court of Appeals is wrong and has erroneously expanded the role
that court was to play in providing habeas corpus review of
state-court criminal convictions, I dissent from denial of the
petition for certiorari.
On Respondent was taken into custody and brought before the
Juvenile Court on March 27, 1962, for a hearing; no transcript or
record of that hearing was made. In accordance with then Ohio
Rev.Code Ann. 2151.26 ( 1954),* the Juvenile Court decided to bind
respondent over to the Criminal Division of the Court of Common
Pleas for trial as an adult. This determination was entered on the
court's docket as a journal entry which is the only record of what
transpired at that hearing. The journal entry reads:
"TO COURT: This twenty-seventh day of
March, 1962, James Samuel Sims, a minor of about the age of
seventeen years, came before the Honorable Albert A. Woldman upon
the petition of Charles R. Reynolds alleging that James Samuel Sims
is a delinquent child in this:
Page 450 U.S.
936 , 938
that on or about February 16, 1962, at 4502 St. Clair Avenue,
Cleveland, Ohio, he did unlawfully, and by putting in fear while
armed with a dangerous weapon, to wit, a pistol, rob from the
person of one, Dorothy Kulas, cash in the approximate amount of
$1069.00 contrary to the statute in such case made and provided for
and against the peace and dignity of the State of Ohio. That on or
about February 18, 1962, at 3005 Woodhill Road, Cleveland, Ohio, he
did unlawfully, purposely and while in the perpetration of a
robbery, kill one, William C. Beasley, contrary to the form of the
statute in such case made and provided for and against the peace
and dignity of the State of Ohio. That on or about February 23,
1962, at 6938 Kinsman Road, Cleveland, Ohio he did unlawfully, and
by putting in fear while armed with a dangerous weapon, to wit, a
pistol, rob from the person of one, David Warren, cash in the
approximate amount of $ 104.50, contrary to the form of the statute
in such case made and provided for and against the peace and
dignity of the State of Ohio. It appearing to the Court that said
child has committed acts which, if committed by an adult, would be
felonies, a mental and physical examination having been made by
duly qualified persons as provided by statute, it is hereby ordered
that pursuant to Section 2151.26 Ohio Revised Code the said James
Samuel Sims be bound over to the Court of Common Pleas of Cuyahoga
County for further proceedings according to law. It is ordered that
said James Samuel Sims be, and he hereby is, committed to the jail
of Cuyahoga County."
619 F.2d
598, 599 (1980 ). (Emphasis added.)
Following this journal entry, respondent was indicted on two
counts of first-degree murder. Respondent pleaded not guilty, but
later withdrew his plea and entered a plea of guilty to homicide
generally and waived trial by jury. Pursuant to
Page 450 U.S.
936 , 939
then-current Ohio law, respondent was tried before a three-judge
court solely on the issue of the degree of culpability. He was
found guilty of first-degree murder on both counts of the
indictment and sentenced to two consecutive terms of life
imprisonment.
On May 17, 1976, respondent filed a pro se motion for leave to
appeal with the Ohio Eighth District Court of Appeals seeking to
challenge his conviction on the ground that he had been placed
twice in jeopardy by being tried and convicted as an adult in
criminal court. The Court of Appeals granted his motion, appointed
counsel, but later found no error and affirmed the convictions and
sentences. With regard to the double jeopardy claim, the court
acknowledged that this Court held in Breed v. Jones,
421 U.S. 519 (1975), that
a juvenile who has been subject to a "jurisdictional or
adjudicatory hearing" in a juvenile court before being bound over
to be tried as an adult is placed twice in jeopardy by the later
criminal trial. However, this Court also stated that it was not
foreclosing States from requiring a finding of probable cause as a
prerequisite for transfer. Id., at 538, n. 18, 95 S. Ct. at 1790,
n. 18. Applying the principles set forth in Breed, the Ohio Court
of Appeals found that there was no indication that an adjudicatory
hearing or a jurisdictional hearing was conducted in this case. The
court explained:
"There is no finding of delinquency,
and there is no recitation of any evidence upon which such an
adjudication could be premised. All that appears to have occurred
is that the Juvenile Court arrived at a determination that there
was an appearance of possible criminal action which properly and
appropriately should be considered by the Court of Common Pleas of
Cuyahoga County." State v. Sims, 55 Ohio App.2d 285, 290, 380
N.E.2d 1350, 1353 (1977).
After the Ohio Supreme Court dismissed respondent's appeal for
failure to state a substantial constitutional question,
Page 450 U.S.
936 , 940
respondent petitioned for a writ of habeas corpus in the United
States District Court for the Northern District of Ohio again
alleging a double jeopardy claim. The District Court denied the
petition. The court held that the journal entry lent little support
to respondent's position because it contained neither a specific
finding that respondent committed any of the criminal acts alleged
nor a recitation of evidence. The court also rejected the
respondent's contention that because the journal entry purported to
be issued pursuant to Ohio Rev.Code Ann. 2151.26 (1954), compliance
with that statute required that a juvenile be formally adjudged
delinquent before being bound over to be tried as an adult. In
rejecting this contention, the District Court explained that the
proper operation and construction of 2151.26 was largely unsettled
prior to the clarification provided by the Ohio Supreme Court in In
re Jackson, 21 Ohio St.2d 215, 257 N.E.2d 74 (1970). Prior to that
1970 decision, many Juvenile Courts bound over only on a
determination of probable cause. Given the uncertainty of the law
surrounding 2151.26 prior to the Jackson decision, the District
Court was unwilling to assume that an adjudication of delinquency
was made at respondent's 1962 hearing. The pre-Jackson practice of
binding over on a probable-cause determination, coupled with the
absence of any specific factual findings indicative of
adjudication, strongly suggests that respondent's juvenile hearing
was of a nonadjudicatory nature.
The Court of Appeals for the Sixth Circuit reversed.
619 F.2d
598 ( 1980). According to the Court of Appeals, the District
Court's reasoning overlooks the essential fact that the Juvenile
Judge was empowered to impose sanctions at the 1962 hearing, that
evidence was taken, and that the liberty and reputation of the
respondent were put in risk at that time . The rendering of a final
judgment is immaterial to the applicability of the Double Jeopardy
Clause and therefore the much disputed meaning of the Juvenile
Court's jour-
Page 450 U.S.
936 , 941
nal entry is irrelevant and unnecessary to the disposition of
the case. The court stated:
"What actually occurred at the March
27, 1962 hearing is also insignificant. Once the Juvenile Court,
possessing the jurisdiction and power to enter final orders levying
a wide range of possible sanctions, began a hearing, not limited in
scope by statute to a preliminary or probable cause hearing,
jeopardy attached and appellant possessed the constitutional right
to have the Juvenile Court, as the original trier of fact,
determine his fate." Id., at 605.
Subsequently, the Court of Appeals denied a petition for
rehearing, stating that petitioner was in error in his contention
that the court's opinion would require the release of every
juvenile who was bound over according to the procedures of former
Ohio Rev.Code Ann. 2151.26 (1954). The court explained that it was
not deciding that there would be a double jeopardy violation where
the record of the Juvenile Court hearing plainly established that
the hearing was limited to a determination of probable cause.
The decision of the Court of Appeals, in my view, merits review
if not outright summary reversal for several reasons. In the first
place, any petition for habeas corpus which seeks to attack a
juvenile journal entry, or to construe it, by means of a federal
habeas petition filed 16 years later should receive the strictest
scrutiny from the federal courts who are asked to intervene and set
aside a state-court conviction presumptively valid on its face.
This was commendably recognized by the District Court when it
said:
"Inquiry concerning the nature of the March 27, 1962 hearing by
the Juvenile Court is hindered by the absence of any transcript of
the proceeding." App. to Pet. for Cert. A-20.
A federal court in this situation should also not lose sight of
the fact that it is the habeas applicant who has the burden of
Page 450 U.S.
936 , 942
proving a constitutional violation, see Sumner v. Mata,
449 U.S. 539 (1981), and
that no system of justice which gives both society and a defendant
their due is aided by attempting to reconstruct or re-evaluate
events that took place decades ago, as if it were an archaeological
expedition, rather than an exercise in the administration of
justice.
Public confidence that justice is administered fairly between
the defendant and the State is not bolstered by the fact that the
opinion of the Court of Appeals can quite reasonably be read as
inconsistent on its face with its later order denying the petition
for rehearing. In that order, the court stated that a double
jeopardy violation would not arise if it were clear that a
probable-cause determination, as opposed to a delinquency
determination, was made at the bindover hearing. This is in direct
contradiction to the analysis the court employed in its original
opinion where it stated that it need not inquire into what occurred
at the 1962 hearing because once the Juvenile Court began a hearing
which was not limited by statute to a probable-cause determination,
jeopardy attached.
To the extent the court meant what it said in its original
opinion, the decision is of significant importance. First, to reach
its conclusion the court had to make an assessment as to the type
of determination a juvenile court was required to make in 1962
prior to binding over a juvenile for trial as an adult. The court
held that an Ohio juvenile court was required to make a
"delinquency" determination at such a hearing and it reached this
result even though the other courts which addressed the issue,
including the Ohio state courts, all concluded to the contrary,
explaining that the law on this point was not settled until the
1970 decision in Jackson. The prior uncertainty of the law on this
point (and consequently the Court of Appeals' error) is most
clearly illustrated by the fact that Jackson itself affirmed a
lower court opinion reversing a juvenile's bindover on a finding of
probable cause. It is patently obvious to me that the Ohio state
courts are much
Page 450 U.S.
936 , 943
more competent than a federal habeas court to determine what
Ohio law required of juvenile courts in 1962.
The assumption, made cavalierly in my opinion by the Court of
Appeals, that a double jeopardy violation arose because the Ohio
Juvenile Court was required to make a delinquency determination
prior to binding the juvenile over for trial as an adult, goes
beyond what we held in Breed v. Jones,
421 U.S. 519 (1975). If
the decision remains the law of the Sixth Circuit, and if we deny
certiorari there is no reason to believe that other Circuits will
not follow it, and it may well require the release of every
juvenile bound over under the same statute and then subsequently
convicted as an adult. If we dealt here with the fate of only one
criminal defendant, it would not be worth the time of this Court to
inquire into the correctness of the decision of the Court of
Appeals. But a decision that appears to require what may be the
massive release of large numbers of similarly situated convicted
criminals should not occur without this Court's first reviewing the
constitutional unpinnings of such decision.
The District Court, sitting as it did with a District Judge far
more familiar with Ohio practice than the three judges of the Court
of Appeals only one of whom is an Ohioan, was surely correct in its
unwillingness to assume that an adjudication of delinquency was
made at respondent's 1962 hearing. Indeed, as the District Court
stated:
"The pre-In re Jackson practice of binding over on a probable
cause determination, coupled with the absence of any specific
factual findings indicative of an adjudication, discussed infra,
strongly suggest that petitioner's juvenile hearing was of a
non-adjudicatory nature." App. to Pet. for Cert. A-23.
For the reasons previously stated, I would grant certiorari to
review what seems to me an abuse of the "Great Writ" by the Court
of Appeals for the Sixth Circuit. Respondent was indicted by the
Cuyahoga County grand jury on two counts
Page 450 U.S.
936 , 944
of first-degree murder 19 years ago, and although first pleading
not guilty to these charges, later withdrew this plea and entered a
plea of guilty to homicide generally and waived a trial by jury. He
was then tried before a three-judge court solely on the degree of
culpability according to then-current Ohio law, and was found
guilty and sentenced to two consecutive terms of life imprisonment
on the basis of his plea. It was not until 14 years later that it
occurred to him that these Ohio proceedings violated the double
jeopardy provision of the Fifth and Fourteenth Amendments, and then
he unsuccessfully sought relief in the Ohio Court of Appeals, the
Supreme Court of Ohio, and the United States District Court for the
Northern District of Ohio. It cannot be fairly said that the
opinion of the Court of Appeals will affect only respondent, but it
can be fairly said that respondent has set in motion legal
machinery, both state and federal, far exceeding either the merits
of his claim or the proper allocation of judicial resources in a
system of justice which recognizes both the interests of society
and that of the defendant.
Footnotes
[
Footnote *] At the time of the
juvenile proceedings afforded petitioner in this case, Ohio
Rev.Code Ann. 2151.26 (1954) provided:
"In any case involving a delinquent
child under sections 2151.01 to 2151.54, inclusive, of the Revised
Code, who has committed an act which could be a felony if committed
by an adult, the juvenile judge, after full investigation and after
a mental and physical examination of such child has been made by
the bureau of juvenile research, or by some other public or private
agency, or by a person qualified to make such examination, may
order that such child enter into a recognizance with good and
sufficient surety, subject to the approval of the judge, for his
appearance before the court of common pleas at the next term
thereof, for such disposition as the court of common pleas is
authorized to make for a like act committed by an adult; or the
judge may exercise the other powers conferred in such sections in
disposing of such case."