dissenting.
The decision of the District Court now on review is its response to our two directions for discovery on remand in Midgett v. McClelland, No. 73-2239 (4 Cir. July 15, 1974). They were these: (1) to consider (though not requested by the appellant) the possibility of double jeopardy in the conviction for an assault at the second trial, since at the first trial a charge of assault had been abandoned; and (2) to develop further the question of whether Midgett’s second sentence for kidnapping — 30 years — was increased beyond the first sentence — 15 years —“in consideration of his acquittal on the armed robbery charge”, to determine whether the greater sentence was invalid as the result of vindictiveness of the trial judge to avenge the acquittal.
*1198In my view the District Court’s opinion has soundly responded in the negative to these directives and quite fully too. In his exploration, the judge indefatigably and comprehensively pursued the very methods suggested by us, seeking affidavits and reviewing the 1200 page transcript of the second trial, as to the reasons of the State judge in fixing the sentence. In the process he observed, passim, upon the patience that the State judge displayed in the interest of Midgett. The District Judge’s conclusion to deny again the habeas corpus is to me impregnable.
The first trial was on two indictments, No. 250 (1957), charging armed robbery and assault, and No. 446 (later in 1957) charging kidnapping. Convicted on both, he appealed. The Maryland Court of Appeals reversed, Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958) because of a procedural error only. However, in the course of its opinion the appellate court noted a confusion in the instructions between false imprisonment and kidnapping. On remand the State trial judge, effectuating the comment of the higher court, pointed out that kidnapping is a statutory crime, that the definition specifically includes the term “kidnapping” but that it did not appear in the indictment. He held its inclusion a sine qua non of the accusation of kidnapping and so No. 446 was dismissed. See Memorandum Opinion of Judge Joseph Allen, in State of Maryland v. Curtis Edward Midgett (March 9, 1959), Criminal Court of Baltimore City. Midgett apparently agreed, for it was he who successfully moved, after the appeal was ended, for dismissal of the indictment on account of the fatal omission. In sum, in the view of the State lower court, Midgett initially was not tried for kidnapping. It declared that his second trial was not in that respect a duplication of the first and, ergo, there was no double jeopardy of kidnapping. As will momentarily appear we, too, have previously so held.
In the second trial, a new indictment, No. 1157, alleged kidnapping in two counts, precisely in accordance with the statute. Another indictment, No. 2120, tried on this occasion was for conspiracy to rob. At the same time No. 250 was again prosecuted; it included the old charge of assault. Midgett was found guilty of kidnapping, assault and conspiracy to rob.
I
The majority now also holds that the conviction of kidnapping and assault at the second trial was a denial of due process and imposition of double jeopardy. I cannot accede to this ruling.
To begin with, a greater punishment on a second trial is not in law per se an abrogation of equal protection, due process or double jeopardy proscriptions. North Carolina v. Pearce, 395 U.S. 711, 719, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Michigan v. Payne, 412 U.S. 47, 50, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Chaffin v. Stynchcombe, 412 U.S. 17, 23, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). As Midgett’s conviction (1959) predated Pearce, he was burdened to “come forward with evidence of retaliatory motivation on the part of the judge who imposed the second, more severe sentence.” Midgett v. McClelland, No. 73-2239 (4 Cir. July 15, 1974). In this he failed.
When the convictions at the second trial were carried up on appeal, neither Midgett nor his counsel made these points, unless they were covered in Chief Judge Brune’s opinion for the Court: “The appellant has raised a number of other contentions, none of which we find to be well founded.” Midgett v. Warden, 223 Md. 282, 164 A.2d 526, 535 (1960). Again, arguments on both of these contentions were settled against them by the District Court for Maryland in a habeas application. In Midgett v. Warden, 217 F.Supp. 843, 848 (D.C.Md.1963) it was held that there was no possibility of double jeopardy by the second indictment of kidnapping or in the assault conviction.
There Judge Thomsen concluded that “the point with respect to the filing of the new indictment, 1157/59 [kidnapping], is entirely without merit” and, as to the assault conviction, “[n]o constitutional ground for relief at this time on this point has been *1199shown”. (Italics added.) These views became conclusive when we said in affirming: “Finally, we think the petitioner’s claims of double jeopardy both as to his retrial for kidnapping . . . and his retrial . for robbery and assault are without substance for the reasons pointed out by the district court, which need no further elaboration here”. (Italics added.) Midgett v. Warden, 329 F.2d 185, 187 (4 Cir. 1964). In his determinations Judge Thomsen recalled, 217 F.Supp. 848 supra, that the Maryland Court of Appeals per curiam had again made the same judgment, on the grounds stated by Judge Jones, a State trial judge, Midgett v. Warden, Post Conviction No. 11, 229 Md. 617, 182 A.2d 52 (1962), after the second trial. His statement is quoted by Judge Thomsen, 217 F.Supp. 847.
The absence of a “constitutional ground” found by Judge Thomsen and affirmed by us, obviously excludes any basis now for our holding that the second trial on kidnapping and assault was a denial of due process or a subjection to double jeopardy. No appeal was taken from any of the foregoing decisions and consequently the points are now foreclosed to Midgett.
II
Facts destructive of the imputation of avengement, as the District Judge here relates, are readily at hand: the sentencing judge was not the judge who was reversed; the second indictment charged a crime of kidnapping greater than the so-called kidnapping first alleged and justified severer punishment; a more exacting punishment than the five years could have been meted out for the now unquestioned conspiracy conviction — 10 years instead of five — and 10 years in lieu of five for the assault; and 15 years for the kidnapping; all to be served consecutively for a total of 35 years, the aggregate of the first sentences.
Additionally in respect to the question of retaliation, at the time we remanded it to the District Judge for further inquiry, we described it as an issue of fact. Consequently, the report of the District Judge was a resolution of a factual matter. Hence, his last determination of no retaliation was a finding of fact, not “clearly erroneous” and so not to be rejected now. F.R.Civ.P. 52. I can see no foundation for overturning this ultimate finding.
In short, to my mind Midgett has been given every consideration, indeed far beyond the duty of the courts. There have been at least five petitions for habeas corpus in the State court and at least three in the Federal court. I can conceive of no call for further indulgence of Midgett’s constitutional right to litigate.
The District Judge should at once be affirmed for reasons stated in his opinion, Midgett v. Gerald McClelland, Warden of the Maryland Penitentiary, 422 F.Supp. 82 (D.C.Md.1975).