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Caspari v. Bohlen

decided: February 23, 1994.



O'connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion.

Author: O'connor

JUSTICE O'CONNOR delivered the opinion of the Court.

In Bullington v. Missouri, 451 U.S. 430 (1981), we held that a defendant sentenced to life imprisonment following a trial-like capital sentencing proceeding is protected by the Double Jeopardy Clause against imposition of the death penalty if he obtains reversal of his conviction and is retried and reconvicted. In this case we are asked to decide whether the Double Jeopardy Clause prohibits a State from twice subjecting a defendant to a non-capital sentence enhancement proceeding.


Respondent and others entered a jewelry store in St. Louis County, Missouri, on April 17, 1981. Holding store employees and customers at gunpoint, they stole money and jewelry. After a jury trial, respondent was convicted on three counts of first-degree robbery. See Mo. Rev. Stat. § 569.020 (1978). The authorized punishment for that offense, a class A felony, is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment." Mo. Rev. Stat. § 558.011.1(1) (Supp. 1982).

Under Missouri law, the jury is to "assess and declare the punishment as a part of [the] verdict." § 557.036.2. The judge is then to determine the punishment "having regard to the nature and circumstances of the offense and the history and character of the defendant," § 557.036.1, although the sentence imposed by the judge generally cannot be more severe than the advisory sentence recommended by the jury. § 557.036.3. If the trial judge finds the defendant to be a "persistent offender," however, the judge sets the punishment without seeking an advisory sentence from the jury. §§ 557.036.4, 557.036.5. A persistent offender is any person "who has pleaded guilty to or has been found guilty of two or more felonies committed at different times." § 558.016.3. The judge must find beyond a reasonable doubt that the defendant is a persistent offender. § 558.021. For a defendant who has committed a class A felony, a finding of persistent-offender status shifts the sentencing decision from the jury to the judge but does not alter the authorized sentencing range. §§ 557.036.4(2), 558.016.6(1).

The trial judge in this case sentenced respondent as a persistent offender to three consecutive terms of 15 years in prison. The Missouri Court of Appeals affirmed respondent's convictions. State v. Bohlen, 670 S.W.2d 119 (1984). The state court reversed respondent's sentence, however, because "although [respondent] was sentenced by the judge as a persistent offender no proof was made of the prior convictions." Id., at 123. Following Missouri practice, see State v. Holt, 660 S.W.2d 735, 738-739 (Mo. App. 1983), the court remanded for proof of those convictions and resentencing.

On remand, the State introduced evidence of four prior felony convictions. Rejecting respondent's contention that allowing the State another opportunity to prove his prior convictions violated the Double Jeopardy Clause, the trial judge found respondent to be a persistent offender and again sentenced him to three consecutive 15-year terms. App. A-29, A-35. The Missouri Court of Appeals affirmed: "The question of double jeopardy was not involved because those provisions of the Fifth Amendment have been held not to apply to sentencing." State v. Bohlen, 698 S.W.2d 577, 578 (1985), citing State v. Lee, 660 S.W.2d 394, 399 (Mo. App. 1983). The Missouri Court of Appeals subsequently affirmed the trial court's denial of respondent's motion for post-conviction relief. Bohlen v. State, 743 S.W.2d 425 (1987).

In 1989, respondent filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, adopting the report and recommendation of a Magistrate, denied the petition. App. to Pet. for Cert. A25-A26. The court rejected respondent's contention that the Double Jeopardy Clause barred the State from introducing evidence of respondent's prior convictions at the second sentencing hearing. Id., at A37-A49.

The United States Court of Appeals for the Eighth Circuit reversed. 979 F.2d 109 (1992). Based on its conclusion that "the persistent offender sentence enhancement procedure in Missouri has protections similar to those in the capital sentencing hearing in Bullington," id., at 112, the court stated that "it is a short step to apply the same double jeopardy protection to a non-capital sentencing hearing as the Supreme Court applied to a capital sentencing . . . hearing." Id., at 113. The court held that taking that step did not require the announcement of a "new rule" of constitutional law, and thus that granting habeas relief to respondent would not violate the non-retroactivity principle of Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). The Court of Appeals accordingly directed the District Court to grant respondent a writ of habeas corpus. 979 F.2d, at 115.

We granted certiorari, 508 U.S. (1993), and now reverse.


We have consistently declined to consider issues not raised in the petition for a writ of certiorari. See this Court's Rule 14.1(a) ("Only the questions set forth in the petition, or fairly included therein, will be considered by the Court"). In Yee v. Escondido, 503 U.S. (1992), for example, the question presented was whether certain governmental action had effected a physical taking of the petitioner's property; we held that the question whether the same action had effected a regulatory taking, while "related" and "complementary" to the question presented, was not fairly included therein. Id., at (slip op., at 15-16). In Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. (1993) (per curiam), the question presented in the petition was whether the courts of appeals should routinely vacate district court judgments when cases are settled while on appeal; we held that the "analytically and factually" distinct issue whether the petitioner was ...

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