The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
Petitioner, represented by counsel in this federal habeas corpus proceeding, is presently an inmate of Auburn Correctional Facility. In my judgment, the petition presents a substantial and complex issue under the Double Jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Petitioner was indicted on February 14, 1972 for the crimes of (1) Intentional Murder of one Flagg, (2) Felony Murder of Flagg, (3) Attempted Murder of one Tranumm, and (4) Attempted Robbery in the First Degree of property owned by Flagg. This indictment names Eric Caesar as a defendant with petitioner. Caesar did not testify at the trial and the disposition of the indictment against him is not disclosed. After a trial by jury in Supreme Court, Criminal Division, Queens County, Supreme Court Justice Frank D. O'Connor presiding, petitioner was found guilty by a partial verdict returned April 28, 1972 of Attempted Robbery, the fourth count, and not guilty on the first count of Common Law Murder of Flagg. No verdict was reached by the jury on counts two and three of the indictment: the felony murder count and the attempted murder count. The partial verdict was accepted by the trial judge. The transcript of this first trial covering the submission of the case to the jury for verdict, the questions of the jury to the court and their comments, is interesting reading. (Tr. pp. 255-74).
In a second trial, Acting Supreme Court Justice George J. Balbach presiding, petitioner was again tried on the felony murder of Flagg count and the attempted murder of Tranumm count, these being the unresolved charges from the first trial. On December 20, 1972, he was found guilty on the two counts. He was not sentenced until October 29, 1973. The sentence imposed by Justice Balbach was fifteen years to life on the felony murder count and zero to twelve years on the attempted murder count, sentences to run concurrently.
The time sequence for the following events are very important in the resolution of the double jeopardy question. After this second trial with the jury verdict rendered on December 29, 1972, convicting the petitioner of the felony murder of Flagg and the attempted murder of Tranumm, a motion dated February 1, 1973 was filed with Justice O'Connor in behalf of petitioner for a judgment of acquittal notwithstanding the verdict or in the alternative for a new trial, in regard to the first trial's attempted robbery conviction returned by verdict of the jury on the four count indictment. Supreme Court Justice O'Connor, by decision dated May 7, 1973 and apparently filed May 14, 1973, set aside the verdict, actually involving only the attempted robbery conviction, and granted a new trial. The bases for the ruling seems to be the failure of the prosecution to provide a pretrial statement of an eyewitness requested by the defense, and the failure to reveal information to the defense as to the other eyewitness. Such decision, therefore, was filed on May 14, 1973, after the jury verdict had been returned in the second trial on the felony murder count on December 20, 1972, but before petitioner was sentenced on those counts on October 29, 1973. A new trial was never held on the count of the indictment for attempted robbery, and the count was finally dismissed by Supreme Court Justice T. S. Agresta on December 12, 1975.
The conviction of petitioner in the second trial was directly and collaterally attacked on grounds other than double jeopardy. On October 25, 1973, his motion to set aside the verdict on the two counts of felony murder and attempted murder and for a judgment of acquittal was denied by Justice Balbach. Petitioner's direct appeal to the Appellate Division, Second Department, resulted in an affirmance of the conviction on June 4, 1975, without opinion. Leave to appeal to the New York State Court of Appeals was denied on August 6, 1975, without opinion.
Petitioner has also previously applied pro se to the United States District Court for the Eastern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This previous federal petition was based upon three separate grounds: (1) a publicly displayed trial calendar deprived him of a fair trial; (2) that restrictions placed on defense counsel by the trial judge violated his confrontation rights; and (3) that the prosecutor's summation was so unfair as to deny him a fair trial. In a Decision and Order dated February 27, 1980, United States District Judge Henry Bramwell denied the petition for habeas relief on the merits.
During the pendency of petitioner's federal habeas petition, the petitioner applied pro se for a writ of habeas corpus in Supreme Court, Clinton County. Supreme Court Justice Harold J. Soden granted a hearing and assigned counsel to the petitioner who remains as counsel for petitioner in this federal proceeding. The grounds for relief in the state petition were basically the same as in the present petition, including for the first time that the prosecution of petitioner at the second trial on the unresolved counts from his first trial violated his protection against double jeopardy. The state petition for habeas corpus was denied in a decision dated November 15, 1979 by Justice Soden. The Appellate Division, Third Department, affirmed the denial on June 26, 1980, without opinion. Leave to appeal to the New York Court of Appeals was denied on October 9, 1980.
By Memorandum-Decision and Order, I directed the filing and service of the present petition upon the Respondent pursuant to Rules 4 and 5 of the Rules Governing Section 2254 Cases in order to obtain an answer or other pleading in response to its allegations. An answer for the respondent and a memorandum of law in opposition to the petition has been filed by the Attorney General concluding that the petition should be dismissed. The brief in support of the petition has attached relevant exhibits 1-5, and the Attorney General submits with his memorandum of law a substantial number of state court briefs and trial transcripts of the two trials relating to this case. These records must be returned to the Queens County District Attorney's Office. This court appreciates this necessary assistance and cooperation. Copies of the decisions of Justice O'Connor, Justice Balbach, Judge Bramwell, and Justice Soden shall be filed with the Clerk of this Court.
Petitioner sets forth four grounds in his petition upon which federal habeas relief is sought. These grounds are: (1) that the conviction at the first trial on the attempted robbery count of the four count indictment operated as an acquittal of the felony murder charge because the attempted robbery charge is a lesser included offense, (2) that the retrial on the attempted murder charge was barred by the New York Criminal Procedure Law since it was not a consecutive count to the resolved counts, (3) that petitioner's constitutional right against double jeopardy was violated in that a partial verdict in the first trial barred the second prosecution on the unresolved counts of felony murder and attempted murder, and (4) that the state court erred in denying petitioner's state court writ by misapplying the New York Criminal Procedure Law.
Before federal habeas corpus relief can be granted the petitioner must exhaust all available state remedies on all grounds alleged in the petition. 28 U.S.C. § 2254(b) and (c); Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). Further, this exhaustion requirement is not satisfied unless the habeas petitioner explicitly refers to a federal constitutional standard in presenting his claim to the state courts. See Klein v. Harris, 667 F.2d 274 (2d Cir. 1981); Daye v. Attorney General of the State of New York, 663 F.2d 1155 (2d Cir. 1981), petition for hearing in banc granted, hearing in banc April 13, 1982; Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979); Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979); Wilson v. Fogg, 571 F.2d 91 (2d Cir. 1978). It is clear from the petition herein, and as the respondent concedes, that the petitioner has exhausted available state remedies on the grounds presented in this petition. However, in reaching the merits in this federal habeas corpus proceeding the only federal ground to be considered is that petitioner's retrial on the unresolved counts violated his Fifth Amendment right against double jeopardy. See 28 U.S.C. § 2254(a).
The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb". The Supreme Court has found the double jeopardy clause to consist of three separate guarantees. The double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969) (footnotes omitted). Justice Rehnquist dissenting in Whalen v. United States, 445 U.S. 684, 699, 100 S. Ct. 1432, 1442, 63 L. Ed. 2d 715 (1980), notes that historians trace the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes.
The issue to be decided herein is whether any of these guarantees were violated by petitioner's retrial for the felony murder of one Flagg and attempted murder of one Tranumm after acquittal at a first trial on the common law murder count and conviction on the attempted robbery count. For the reasons stated hereinafter, it is my judgment that petitioner's retrial on the felony murder count after his conviction on the attempted robbery count was barred by the Fifth Amendment protection against double jeopardy.
In determining whether two offenses are the same for purposes of applying double jeopardy protection the rule of Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), must be considered. In Brown, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932), the Supreme Court held:
"the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each ...