The opinion of the court was delivered by: FRANKEL
The two petitioners for habeas corpus are codefendants in a pending state indictment. They both assert the same claim, arising from the same circumstances: that the trial the State is about to commence would subject them to double jeopardy, violating the due process guaranteed them by the Fourteenth Amendment. Thus, the applications are appropriate for decision in a single opinion.
The pertinent facts, essentially undisputed, are these: On June 24, 1966, petitioners were indicted in several counts for robbery, grand larceny, assault, and possession of a loaded pistol. The case was marked "ready" on January 9, 1967. On February 9, the process of jury selection began, continuing to its completion on February 16, 1967. On the latter date, the prosecutor requested a continuance, which was granted over petitioners' objection, to February 20.
The absence of a material witness was the reason for the continuance. As the facts have developed, it appears that two key prosecution witnesses, Chaffin and Neal, had failed to keep scheduled appointments with the district attorney on February 14, 1967, though both were under subpoena and both had appeared for meetings on several prior occasions. Following unsuccessful efforts by the police to locate these witnesses, the prosecutor, on February 15, began body attachment proceedings which resulted in the arrest and confinement of Chaffin on February 17 but were unsuccessful in the case of Neal.
With Neal still missing on the morning of February 20, the prosecutor sought a further continuance. Again over objection, the case was put over until 2:00 p.m. the same day. At two o'clock Neal was still unlocated. Petitioners moved to dismiss the indictment for failure to prosecute. Denying that motion, the court, sua sponte, declared a mistrial.
Neal was apprehended on February 27, and the case was then moved for trial. Petitioners' claim of double jeopardy was denied. An adjournment was granted, however, so that petitioners, pursuing a proper course of state procedure, could press their double jeopardy contention by an application in the nature of prohibition under Article 78 of the New York Civil Practice Law and Rules.
The Article 78 petition was denied by the Appellate Division on March 20, 1967, and that decision was affirmed by the New York Court of Appeals on November 29, 1967. The decision by the State's highest Court was by the closest of divisions (4-3). The dissent (by Breitel, J.) emphasized that the New York rule as to the time when jeopardy attaches is against the great weight of authority, but mentioned also that the change sought by petitioners "would avoid the possibility of conflict with federal standards * * *." In any event, there is no question that petitioners have adequately presented in the State, and exhausted their state remedies upon, the contention that their plea of double jeopardy must be sustained as a matter of federal right under the Fourteenth Amendment.
Before reaching that argument on the merits, however, it is fitting to note, if only briefly, one or two procedural matters. First, the case is somewhat unusual in that petitioners have not yet been tried, let alone convicted, by the State. But both have been in custody, and Bland is now in custody, awaiting trial. Cf. Beasley v. Pitchess, 358 F.2d 706 (9th Cir. 1966). Murray, while not in prison, is under the constructive and practical restraints entailed in his current enlargement on bail. The respondent, quite properly, suggests no doubt in these circumstances as to the propriety of these habeas proceedings. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1963); Duncombe v. New York, 267 F. Supp. 103, 109 n. 9 (S.D.N.Y.1967).
A subject which has been disputed is the fact that petitioners did not seek review by the Supreme Court on certiorari of the decision in their Article 78 proceeding. Assuming, without holding, that the court could in discretion take this as grounds for refusing to entertain a habeas corpus petition, see United States ex rel. Stevens v. McCloskey, 239 F. Supp. 419, 422-423 (S.D.N.Y.1965),
this is not an appropriate case for any such result. For one thing, with their prosecutions still pending, it is at least doubtful whether petitioners could meet the finality test for invoking the Supreme Court's jurisdiction over state decisions. Cf. Arceneaux v. State of Louisiana, 376 U.S. 336, 338, 84 S. Ct. 777, 11 L. Ed. 2d 750 (1964); Republic Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 72, 68 S. Ct. 972, 92 L. Ed. 1212 (1948). Secondly, whatever may have been the case a few weeks ago, the time for certiorari seems now to have expired. This is enough for the subject as it appears in this case, except to note that there is powerful basis for petitioners' view that a certiorari application ought not in any event to be treated as if it were a remedy "available in the courts of the State" (28 U.S.C. § 2254(b)) so that "non-exhaustion" of that procedure may bar federal habeas. See Fay v. Noia, 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Curtis v. Boeger, 331 F.2d 675 (8th Cir. 1964); Hedberg v. Pitchess, 362 F.2d 511 (9th Cir. 1966).
On the merits, while petitioners' claim is both substantial and interesting, controlling authority requires denial of the petitions by this court of first instance.
As the law stands right now, the Double Jeopardy Clause of the Fifth Amendment has not been "incorporated" in anything like its full federal dimensions as part of the due process guaranteed by the Fourteenth. Palko v. State of Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937); Brock v. State of North Carolina, 344 U.S. 424, 73 S. Ct. 349, 97 L. Ed. 456 (1953); Hoag v. State of New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958); Ciucci v. State of Illinois, 356 U.S. 571, 78 S. Ct. 839, 2 L. Ed. 2d 983 (1958); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462-463, 67 S. Ct. 374, 91 L. Ed. 422 (1947). The cited cases, though their bases and implications may have been weakened in recent years, cf. United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied sub nom. Mancusi v. Hetenyi, 383 U.S. 913, 15 L. Ed. 2d 667, 86 S. Ct. 896 (1966), remain authoritative obstacles for this court barring acceptance of ...