Smith and Marshall, Circuit Judges, and Metzner, District Judge.*fn* Metzner, District Judge (dissenting).
George Hetenyi is presently imprisoned in Attica, New York, by the State of New York under a sentence of from forty years to life that was imposed after a jury found him guilty of murder in the second degree. He applied to the United States District Court for the Western District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that he is being held in custody in violation of the federal Constitution. The District Court denied his application on the merits, and this is an appeal from that order. We reverse.
On or about April 22, 1949 Hetenyi's wife was shot to death. Approximately one month later, on May 19, 1949, Hetenyi was indicted by the Grand Jury of Monroe County, New York, for murder in the first degree, and he was thrice tried on this same indictment.*fn1 At all three trials the evidence supporting the charge was circumstantial.
The first trial took place during December, 1949 in the Monroe County Court. The trial judge gave the jury the alternatives of finding Hetenyi guilty of first degree murder,*fn2 guilty of second degree murder,*fn3 guilty of first degree manslaughter*fn4 or not guilty. The jury returned a verdict of guilty of second degree murder, and in January, 1950 Hetenyi received a sentence of from fifty years to life. He appealed to the Appellate Division, Fourth Department, and that court unanimously reversed the judgment of conviction and granted a new trial. 277 App.Div. 310, 98 N.Y.S.2d 990 (1950). The Appellate Division noted "that the verdict is supported by sufficient evidence," yet it found error affecting "the substantial rights of the defendant" in the charge relating to venue, in the admission of certain evidence, and in certain comments by the District Attorney on some of this evidence. Specifically, reversible error was found in the trial court's refusal to charge the jury, as requested by defendant, "that they must find as a fact in this case that this killing occurred in the County of Monroe before they can find a conviction," in the trial court's charge that "it makes no difference as to where those shots [killing his wife] were fired," and in charging that finding her body "within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe * * *" The Appellate Division also held that the trial judge had committed reversible error by admitting into evidence a leather holster found near the place where the body of the deceased was discovered and by allowing the District Attorney to argue in his summation that the holster belonged to defendant and "that without question it includes the gun." There was no direct evidence that this holster was the one claimed to have been seen in Hetenyi's car some months prior or that Hetenyi ever owned a gun. Hetenyi also sought reversal because the prosecution had used an article in a magazine relating to the paraffin nitrate test. At the trial, the subject of the test was brought up by the District Attorney on direct examination of a police officer; on cross-examination, Hetenyi's counsel read from a textbook on the subject; and on re-direct the article from the magazine was read, apparently to contradict the textbook. The Appellate Division concluded that since "no such test was made of defendant's hands," "the whole matter was irrelevant and incompetent" and "it was error to permit the reading of either the text-book or the article." It was on the basis of all of these errors, held to affect "defendant's substantial rights," that the Appellate Division reversed and ordered a new trial. The State appealed from this reversal but the order of the Appellate Division was unanimously affirmed by the Court of Appeals of New York without opinion. 301 N.Y. 757, 95 N.E.2d 819 (1950).
Following this reversal, the same District Attorney proceeded to try Hetenyi for the second time under the same indictment charging first degree murder. The trial took place in April and May of 1951 in the Monroe County Court. The jury returned a verdict of guilty of murder in the first degree and Hetenyi was sentenced to be executed. Hetenyi appealed directly to the Court of Appeals, and a closely-divided court reversed the judgment of conviction and ordered a new trial. 304 N.Y. 80, 106 N.E.2d 20 (1952). The Court of Appeals held that there was no error in charging the jury that the place of the killing need not be proved beyond a reasonable doubt. The Court also held that the admission into evidence of the holster introduced into evidence in the first trial was not "a material error" requiring reversal because the District Attorney's statement that was found so objectionable in the appeal from the first trial was lacking, and the trial judge had instructed the jury that even if they believed that this holster was the one previously seen in Hetenyi's car, "they may not draw from that the inference that he possessed the gun which it accommodated." However, the Court found that certain other conduct of the District Attorney had deprived Hetenyi of a fair trial and on the basis of those errors reversed. The Court viewed the "District Attorney's repeated accentuation of the defendant's failure to testify" as sufficient to make the trial unfair; and it held that the District Attorney's attack on Hetenyi's character in which the changes in Hetenyi's religious affiliations were emphasized and Hetenyi was accused of being a "renegade," "a man to whom religion is a fraud, who engages in it purely and simply for selfish reasons," violated a "rule of fundamental fairness in the protection of the individual against unjust prosecution." A new trial was ordered.
Hetenyi was then tried for the third time. This third trial took place in March, 1953 in the Onondaga County Court, as Hetenyi had obtained a change in venue. Once again he was tried upon the same 1949 indictment charging him with first degree murder; and as was done in the other two trials, the trial judge gave the jury the alternatives of returning a verdict of guilty of first degree murder, guilty of second degree murder, guilty of first degree manslaughter, or not guilty. The jury returned a verdict of guilty of second degree murder, and Hetenyi was sentenced to prison for forty years to life. He appealed to the Appellate Division, Fourth Department, and that court affirmed the judgment in a per curiam opinion. 282 App.Div. 1008, 125 N.Y.S.2d 689 (1953). The Appellate Division noted that the verdict "is amply supported by the evidence" and that "throughout the trial the Court exercised extreme care in protecting the rights of the defendant," and concluded that the record "contains no errors which so adversely affect the substantial rights of the defendant as to warrant reversal of the judgment and a new trial." Leave to appeal to the New York Court of Appeals was denied.
Hetenyi is presently being held in custody pursuant to a warrant of commitment issued by the Onondaga County Court upon this judgment of conviction. He claims that it was unconstitutional for the State to prosecute him for first degree murder subsequent to the first trial, and that the prosecution for first degree murder so tainted the third trial as to render it constitutionally inadequate.
This is not the first instance that Hetenyi claimed his detention is unlawful. Hetenyi sought a writ of habeas corpus from the New York courts, but the court of general jurisdiction dismissed the writ and this dismissal was affirmed by the Appellate Division, Third Department, 10 A.D.2d 121, 198 N.Y.S.2d 18, reargument denied, 12 A.D.2d 574, 209 N.Y.S.2d 287 (1960), leave to appeal denied, 8 N.Y.2d 706, 202 N.Y.S.2d 1025, 168 N.E.2d 395, appeal dismissed, 8 N.Y.2d 913, 204 N.Y.S.2d 158, 168 N.E.2d 831. The Appellate Division found Hetenyi's claim to be without merit under the state and federal Constitutions, and added "one last point not raised by the briefs": the relator at neither his second nor his third trial raised the question of double jeopardy or entered such a plea and therefore he "waived his right to the defense of double jeopardy" under both federal and state constitutional standards. Without attempting to assess the sufficiency of the Appellate Division's conclusion, it should be noted that the factual premise appears incorrect. The petition in the present proceeding alleges that in both the second and third trials Hetenyi entered a plea of autrefois acquit. Respondent did not put that allegation into controversy below, and quite understandably the District Court did not make any finding as to its truth. We are nevertheless prepared to view the allegation as true, and thus to reject all factual basis for the waiver argument. In the course of argument before this Court, relator's counsel supported the allegation by reference to the trial transcript of the third trial, he explained that reargument was sought from the Appellate Division in order to correct its factual inaccuracy, and he suggested that reargument was denied by the Appellate Division not because there was no factual error, but because the waiver argument resting on this factual inaccuracy was offered only as an alternative ground for affirming the order dismissing the writ. Respondent did not take issue with this offer of proof and explanation. We thus have no reason to disbelieve the allegation in the present habeas petition that the plea of autrefois acquit was entered but disallowed in the second and third trials.
Nor is this the first instance in which Hetenyi presented his constitutional claim to a federal court. After his application for the state habeas writ was dismissed, Hetenyi applied to a federal district court for a writ, though this time his claim was formulated solely on the basis of the federal Constitution. On January 4, 1963 the District Court denied the application without prejudice and without reaching the merits. Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 (1950), was held controlling and the habeas application was denied because Hetenyi had failed to file a petition for a writ of certiorari in the United States Supreme Court seeking review of the denial of his previous habeas application in the state courts. The District Court denied Hetenyi's application for a certificate of probable cause and Hetenyi applied to this Court for a certificate. This Court denied that certificate on May 8, 1963, even though Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) overruled Darr v. Burford some two months earlier and thus removed the procedural obstacle that had prevented the District Court from reaching the merits. Following this Court's denial of the certificate of probable cause, Hetenyi petitioned the Supreme Court for a writ of certiorari. On January 6, 1964 that petition was denied, with Mr. Justice Douglas noting that he was "of the opinion that certiorari should be granted." 375 U.S. 980, 84 S. Ct. 495, 11 L. Ed. 2d 426.
Hetenyi persisted and renewed his application to a federal district court for the writ of habeas corpus. That court -- at last -- turned to the merits, but denied the application without a hearing*fn5 and unjustifiably refused to grant a certificate of probable cause. We granted the certificate and Hetenyi's constitutional claim is now before us.
The Due Process Clause of the Fourteenth Amendment imposes some limitations on a state's power to reprosecute an individual for the same crime. Abhorrence to successive reprosecutions is deeply rooted in our common law traditions, and the Bill of Rights' curb on the power of the federal government to reprosecute is ample recognition of how central this abhorrence is to our constitutional concept of justice. Similar limitations have been placed on each of the states by their own constitutions and laws,*fn6 and this reveals a societal understanding that certain reprosecutions by a state are incompatible with due process of law. To hold, as we do, that the Due Process Clause of the Fourteenth Amendment imposes some restrictions on a state's power to reprosecute, thereby spanning the gap between the Fifth Amendment's double jeopardy prohibition and a similar prohibition derived from state laws, is to preserve this societal understanding and to read the Fourteenth Amendment as entrusting the federal courts with a responsibility and power to decide which reprosecutions by a state violate our basic notions of justice.
The Supreme Court has not, to this day, invalidated any conviction obtained in the state courts on the ground that the state has transgressed the federal constitutional limitations on its power to reprosecute an individual for the same crime. Yet authority for our initial proposition that some such limits do exist can be derived, first, from the premises and presumptions revealed in those Supreme Court cases in which a double jeopardy claim was interposed against a state, and, secondly, from the doctrine of selective incorporation, supported by a majority of the present Supreme Court, according to which certain guarantees of the Bill of Rights, those that are fundamental, are absorbed by the Due Process Clause of the Fourteenth Amendment and are thus made applicable to the states.
In 1902 Mr. Justice Harlan writing for the Court in Dreyer v. State of Illinois, 187 U.S. 71, 85-86, 23 S. Ct. 28, 47 L. Ed. 79, considered it an open question whether the Due Process Clause of the Fourteenth Amendment imposed any restrictions on the power of a state to reprosecute. In that case it was claimed that Illinois had transgressed those restrictions by reprosecuting the complainant after the first jury, having failed to agree, was discharged. The Court held that even under Fifth Amendment standards, as established by United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), the claim of double jeopardy was ill founded, and that therefore it could "pass this important question [of whether the Due Process Clause of the Fourteenth Amendment curbed the power of the states to reprosecute] without any consideration of it upon its merits." This same question was similarly avoided in a like fashion in another case involving a reprosecution by a state following a hung-jury, Keerl v. State of Montana, 213 U.S. 135, 138, 29 S. Ct. 469, 53 L. Ed. 734 (1909); and perhaps Mr. Justice Harlan's opinion in Shoener v. State of Pennsylvania, 207 U.S. 188, 195-196, 52 L. Ed. 163, 28 S. Ct. 110 (1907) (trial on second indictment after first indictment dismissed on appeal as not charging a crime), could be read as employing the same technique of avoidance, although in Shoener it was necessary to determine as an original proposition that the Fifth Amendment standard was not violated, that the second prosecution did not place the complainant in double jeopardy, before it could "avoid" the question of whether any state reprosecutions would violate the Due Process Clause of the Fourteenth Amendment.*fn7
The next important step occurred in 1937 in Palko v. State of Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288. The mode of analysis employed by Mr. Justice Harlan in Dreyer v. State of Illinois, which enabled that Court to avoid the question whether the Due Process Clause of the Fourteenth Amendment had any double jeopardy content, was unavailable to the Court in Palko, see 302 U.S. at 322-323, 58 S. Ct. 149, 150. The complainant in Palko challenged the power of a state to appeal from a judgment of conviction for a lesser degree of homicide than that charged in the indictment and to reprosecute him for the greater degree upon obtaining a reversal. Mr. Justice Cardozo read Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904), as holding that such reprosecution would fall within the pale "of the prohibition of double jeopardy in federal prosecutions" and he "assumed for the purpose of the case at hand" that Kepner was still good law. Thus unable to employ the technique of avoidance fashioned in Dreyer v. State of Illinois, he sought to avoid the broader question of whether the Due Process Clause of the Fourteenth Amendment imposed any restrictions on a state's power to reprosecute an individual for the same crime by delineating the narrower question whether this particular "kind of double jeopardy" exceeded the limits imposed upon the states by the Due Process Clause of the Fourteenth Amendment. 302 U.S. at 328, 58 S. Ct. 149. However, in dealing with this narrower question it was necessary to articulate the "rationalizing principle" of the Due Process Clause and this principle was cast in such terms as to provide the foundation for an affirmative answer to the broader question. Drawing his most immediate guidance from Twining v. State of New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 (1908), Mr. Justice Cardozo perceived the principle in these terms: the Due Process Clause of the Fourteenth Amendment prohibited the states from enforcing their criminal laws at the cost of violating some fundamental precept of justice, of imposing a "hardship so acute and shocking that our polity will not endure it."
The next intellectual step, the realization that a reprosecution by a state, simply because it was a reprosecution, could violate a fundamental precept of justice, was of no moment, and was accomplished without formal notice. In a series of cases commencing ten years after Palko, an assumption, certainly of the persuasion of a holding, gradually arose that the Due Process Clause of the Fourteenth Amendment did impose some restrictions on the power of a state to reprosecute an individual for the same crime.
In State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462-463, 67 S. Ct. 374, 375-376, 91 L. Ed. 422 (1947), the case of an unsuccessful execution, Mr. Justice Reed, writing for himself, Chief Justice Vinson, Mr. Justice Black and Mr. Justice Jackson declared that "our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense," and concluded, inter alia, not that the Due Process Clause has no double jeopardy content, but that there is "no double jeopardy here which can be said to amount to a denial of federal due process in the proposed execution." Mr. Justice Frankfurter, concurring in the judgment to form the majority, explicitly stated that the Due Process Clause, viewed as prohibiting fundamentally unfair state procedures, had some double jeopardy content, see infra footnotes 8 and 9, while the dissenters did not concern themselves with double jeopardy, but only with the claim that a second attempt to execute the prisoner would be a cruel and unusual punishment. Then followed Gryger v. Burke, 334 U.S. 728, 732, 92 L. Ed. 1683, 68 S. Ct. 1256, (1948), where a unanimous Court held, without reserving the question of whether the Due Process Clause of the Fourteenth Amendment had any double jeopardy content, that a multiple offender statute does not subject "petitioner to double jeopardy," since the sentence as a multiple offender is not "viewed as either a new jeopardy or additional penalty for the earlier crimes." See supra footnote 7. The Court was not unanimous in Brock v. State of North Carolina, 344 U.S. 424, 73 S. Ct. 349, 97 L. Ed. 456 (1953), yet the differences between the Justices arose not so much from the general proposition that the Due Process Clause places some limits on the power of a state to reprosecute, but from the application of this proposition to the particular reprosecution challenged -- the state retried the petitioner after the first trial was halted and a mistrial declared because of the temporary unavailability of testimony by witnesses for the prosecution. The concurring Justice (Frankfurter, J.) and the dissenting Justices (Vinson, C.J. and Douglas, J.) openly embraced this general proposition, and although Mr. Justice Minton, writing for the Court, was less explicit, he did perceive the question presented (using the language of Palko), as whether "that kind of double jeopardy" was "a hardship so acute and shocking that our polity will not endure it." Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949), a case under the Double Jeopardy Clause of the Fifth Amendment was used to justify a negative answer to this question in Brock. Similarly in Hoag v. State of New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958) there was ample acknowledgment that certain state reprosecutions would be constitutionally impermissible. The petitioner was alleged to have robbed five persons on the same occasion. He was first tried and acquitted for robbing three of the victims; and the Supreme Court held that a second trial based on an indictment charging him with robbing the fourth victim was not an "impermissible use of multiple trials." Yet its premise was that some uses of multiple trials would be constitutionally impermissible, see 356 U.S. at 467-469, 78 S. Ct. at 833. See also Ciucci v. State of Illinois, 356 U.S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983 (1958) (fragmented prosecution for homicide). Bartkus v. State of Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959), completes this evolution, for in that case all the Justices assumed that there is some double jeopardy content to the Fourteenth Amendment. A state reprosecution following an acquittal in a federal prosecution for the same conduct, robbing a federally insured savings and loan association, was held permissible only because it was viewed as a reprosecution by another sovereignty for a crime against it. See also Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959). But compare Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). The Court's opinion in Bartkus, written by Mr. Justice Frankfurter, contains abundant suggestions that if the successive prosecutions were both conducted by the same sovereignty, such as Illinois, the Due Process Clause of the Fourteenth Amendment would be violated; and Mr. Justice Frankfurter's separate concurrences in State of Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 469*fn8 67 S. Ct. at 379 and Brock v. State of North Carolina, supra,
344 U.S. at 429*fn9, 73 S. Ct. at 351, need only be recalled to confirm this interpretation. Thus Bartkus firmly establishes that the Due Process Clause of the Fourteenth Amendment does impose some restrictions on the power of a state to reprosecute an individual for the same crime, though we are told, by none other than Mr. Justice Frankfurter, that this proposition had been established more than thirty years prior: "In Palko, the Court ruled that * * * at some point ...