United States Court of Appeals
For the First Circuit
No. 06-2379
ROBERT FOXWORTH,
Petitioner, Appellee,
v.
MICHAEL T. MALONEY,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Selya, Senior Circuit Judges.
David M. Lieber, Assistant Attorney General, and Martha
Coakley, Attorney General, on brief for appellant.
John M. Thompson and Thompson & Thompson, P.C., on brief for
appellee.
January 24, 2008
SELYA, Senior Circuit Judge. Applicants for habeas
corpus relief often present an array of claims, some of which yield
broader redress than others. The king of habeas remedies is an
order for unconditional release with prejudice to reprosecution.
If the fact of the petitioner's prosecution (or any reprosecution
upon the vacation of his conviction) would violate the
Constitution, that relief will follow. A paradigmatic example of
this phenomenon is when jeopardy has attached and the evidence
adduced at trial is found, upon collateral review, to be
constitutionally insufficient to sustain the conviction. See Burks
v. United States, 437 U.S. 1, 18 (1978) (holding that "the Double
Jeopardy Clause precludes a second trial once the reviewing court
has found the evidence legally insufficient"); Fagan v. Washington,
942 F.2d 1155, 1157, 1160 (7th Cir. 1991) (granting unconditional
release because the evidence at trial was insufficient and, thus,
the Constitution barred a retrial).
A lesser (though still potent) habeas remedy is the
vacation of the conviction and conditional release; this remedy
requires the State to retry the petitioner, this time in a manner
consistent with the Constitution, or else to release him. See,
e.g., Dugas v. Coplan, 428 F.3d 317, 342 n.37 (1st Cir. 2005);
Ouber v. Guarino, 293 F.3d 19, 35 (1st Cir. 2002). This appeal
illustrates why a district court ordinarily should not bypass a
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habeas claim for unconditional release simply because it has
concluded that a new trial is warranted.
The background facts may be summarized succinctly. In
1992, a Massachusetts jury convicted the petitioner, Robert
Foxworth, on a charge of second-degree murder. The Massachusetts
Appeals Court affirmed his conviction in an unpublished opinion and
the Supreme Judicial Court denied further review.
The petitioner then repaired to the federal district
court. His habeas petition, 28 U.S.C. § 2254, raised three
properly exhausted claims: (i) a claim that the admission at trial
of a nontestifying codefendant's incriminatory statement violated
his Sixth Amendment rights, see Bruton v. United States, 391 U.S.
123, 126 (1968); (ii) a claim that the use of an unreliable
eyewitness identification violated due process, see Neil v.
Biggers, 409 U.S. 188, 198 (1972); and (iii) a claim that, even
with the eyewitness identification in the mix, the evidence was
constitutionally insufficient to support the conviction, see
Jackson v. Virginia, 443 U.S. 307, 319 (1979). If well-founded,
the insufficiency claim promised to yield relief broader than--and
indeed inconsistent with--conditional release.
The district court found that a Bruton error had
compromised the verdict. It dispatched the petition with this
bottom line: "Because petitioner is entitled to relief on the
basis of his Bruton claim, it is unnecessary to consider his
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additional claims concerning eyewitness identification and
sufficiency of the evidence." The court then granted the
petitioner's habeas corpus application and directed the
Commonwealth "to retry [the] petitioner within sixty days or
release him from custody."
The Commonwealth filed a timely notice of appeal, and
the district court stayed its order pending resolution of this
appeal. The petitioner moved to dismiss the appeal on the ground
that the district court's order, which decided only the Bruton
claim and left the other two claims open for future disposition,
was not final and appealable. In this regard, the petitioner
noted that the district court did not expressly direct the entry
of a final judgment as to fewer than all of the claims asserted.
See Fed. R. Civ. P. 54(b).
Although the petitioner has now withdrawn his motion to
dismiss, we nevertheless test the jurisdictional hypothesis. See
Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151,
155-56 (1st Cir. 2004) (explaining that "[w]hen a colorable
question exists, an appellate court has an unflagging obligation
to inquire sua sponte into its own jurisdiction"). A final
judgment ends the matter in dispute, leaving nothing to be done
but the execution of the judgment. See Alstom Caribe, Inc. v.
Geo. P. Reintjes Co., 484 F.3d 106, 111 (1st Cir. 2007). Here,
all indications are that the district court considered its work
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completed; it did not purport to release the petitioner
conditionally while it mulled other matters but, rather,
effectively returned the petitioner's case to the state court
system, implicitly disposing of his two remaining claims as moot.
Because that was a final judgment, we need not decide whether and
how Rule 54(b) might apply in a habeas proceeding.1
This determination does no more than mark the launch of
our odyssey: the question remains whether we need to address the
implicit disposition of the due process and insufficiency claims.
In part, this question is easily answered; in the present
posture, the petitioner may be able to defend the granting of his
habeas petition on the alternative ground that the admission of
the eyewitness identification violated due process. See
Beauchamp v. Murphy, 37 F.3d 700, 706 (1st Cir. 1994); see also
InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003) (noting
that "we sometimes affirm a district court's judgment even though
we disavow its reasoning").
The insufficiency claim is cut from different cloth--
and that claim presents something of a conundrum. Ordinarily,
1
That question is not free from doubt. At least two of our
sister circuits have applied Rule 54(b) in the habeas corpus
context. See Clisby v. Jones, 960 F.2d 925, 936, 938 n.17 (11th
Cir. 1992) (en banc); Stewart v. Bishop, 403 F.2d 674, 676-80 (8th
Cir. 1968). Other courts of appeals have been less sanguine about
the proposition. See, e.g., Sprosty v. Buchler, 79 F.3d 635, 645
(7th Cir. 1996); Blazak v. Ricketts, 971 F.2d 1408, 1411-12 (9th
Cir. 1992); Young v. Herring, 777 F.2d 198, 201-02 (5th Cir. 1985).
We leave the question for another day.
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such a claim--which inherently calls for broader relief than was
granted by the district court--would require a cross-appeal. See
Young v. Herring, 777 F.2d 198, 200-01, 204-05 (5th Cir. 1985);
see also 15B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3918.9, at 593-94 (1992) ("Upon appeal
by the custodians, the prisoner should be allowed to cross-appeal
to press a demand for greater relief."). But the petitioner has
neither filed a notice of appeal nor requested a certificate of
appealability, 28 U.S.C. § 2253(c), as to the implicit
disposition of his insufficiency claim.
Even without a cross-appeal, interests of fairness and
judicial economy counsel in favor of taking some action at this
juncture. It would make little sense for us to pass upon the
propriety of the ordered relief--a retrial--when broader relief,
if granted, would obviate any need for doing so. Here, moreover,
the district court has not explained why a decision on the merits
of the insufficiency claim was "unnecessary." If it meant that
the grant of a new trial gave the petitioner complete relief, we
disagree; no habeas petitioner would willingly accept half a loaf
(a retrial) if he were entitled to a full loaf (unconditional
release). All in all, it would seem that the proper course is to
remand the matter so that the district court can consider the
insufficiency claim in the first instance.
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We are fortified in this conclusion by the
Commonwealth's prayer for relief in its opening brief, which--
although suggesting that this be done later--acknowledges the
need to remand the cause to the district court for a decision on
the remaining grounds of the petition. The need for a remand
being patent, we think that it is both fairer and more prudent to
remand for further proceedings now rather than wait until the
conclusion of this appeal (as the Commonwealth proposes). We
explain briefly.
If the district court reverses the conviction on
insufficiency grounds, a retrial may prove unnecessary. See
Burks, 437 U.S. at 18. Given this possibility, the better
practice is to err (if at all) on the side of preventing an
unnecessary retrial. Cf. United States v. González-Sánchez, 825
F.2d 572, 588 (1st Cir. 1987) (proceeding to review a challenge
to the sufficiency of the evidence although having previously
found other grounds for reversal of the conviction). This is the
course of prudence, and it is the course that most courts follow.
See 5 Wayne R. LaFave et al., Criminal Procedure § 25.4(c), at
682-83 (1999); Wright & Miller, Federal Practice and Procedure,
supra § 3918.7, at 561.
To be sure, the courts have differed as to whether this
course represents a policy choice or a matter of constitutional
command. Compare, e.g., United States v. Bobo, 419 F.3d 1264,
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1268 (11th Cir. 2005) ("prudential rule"), with, e.g., Vogel v.
Pennsylvania, 790 F.2d 368, 376 (3d Cir. 1986) ("double jeopardy
rights"). We think it represents sound policy and, so, we adopt
as a prudential rule the policy of requiring district courts in
habeas cases to address preserved challenges to evidentiary
sufficiency even though the conviction must be reversed in all
events for trial error. Cf. United States v. Miller, 952 F.2d
866, 874 (5th Cir. 1992) (explaining that it is "clearly the
better practice for the appellate court on an initial appeal to
dispose of any claim properly presented to it that the evidence
at trial was legally insufficient"); United States v. Douglas,
874 F.2d 1145, 1150 (7th Cir. 1989) (noting policy of "routinely
addressing evidentiary sufficiency in criminal cases" even if the
conviction must be reversed for trial error).
Let us be perfectly clear. Although we do not hold
that the Double Jeopardy Clause compels the review of a properly
preserved insufficiency claim before the petitioner is retried,
see, e.g., Vogel, 790 F.2d at 376, we do hold that, as a
prudential matter, such claims (or, for that matter, other habeas
claims for unconditional release with prejudice to reprosecution)
ordinarily should be decided in a timely manner.
For the reasons elucidated above, this matter is
remanded for further proceedings on the insufficiency claim. The
district court is encouraged to consider the due process claim as
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well. When it has concluded its further proceedings, the court
should enter a single omnibus judgment encompassing both its
existing ruling on the Bruton claim and its new ruling(s). The
petitioner is, of course, free to abandon any of his remaining
claims at any time.
There is one final point. The petitioner recently has
moved for admission to bail. We shall not entertain the request,
but it may be renewed before the district court on remand. Given
his favorable prospects for at least partial success and the
length of time that his habeas petition has been pending, we
think that the district court should give the request prompt and
serious consideration, subject, of course, to the traditional mix
of factors involved in such decisions, see, e.g., Hilton v.
Braunskill, 481 U.S. 770, 774-77 (1987), and to whatever
arguments the Commonwealth may muster.
So Ordered.
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