546 F2d 67 Moore v. Foti

546 F.2d 67

Edwin MOORE, Petitioner-Appellant,
v.
Charles FOTI, Criminal Sheriff for the Parish of Orleans,
State of Louisiana, Respondent-Appellee.

No. 76-2491

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 26, 1977.

Harold Douglas, New Orleans, La., for petitioner-appellant.

Harry Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

PER CURIAM:

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1

Appellant, a prisoner in Orleans Parish, Louisiana, seeks relief from further prosecution for first degree murder on the ground that he has previously been put in jeopardy for the same offense. Appellant and two others, all juveniles at the time of the crime, were indicted for first degree murder, punishable by death. Pursuant to a plea bargain reached by appellant and the prosecutor, the state district court accepted a guilty plea to second degree murder and imposed a sentence of life imprisonment. When appellant later challenged his sentence, the Louisiana Supreme Court held that "the district court did not have jurisdiction to accept a plea of guilty and impose a sentence on a fifteen year old for second degree murder" and remanded. State ex rel. Moore v. Warden, 308 So.2d 749, 752 (La.1975). On remand the state reinstituted first degree murder proceedings. After unsuccessfully seeking writs of habeas corpus from the state supreme court, appellant sought habeas relief in federal district court.

2

The district court denied relief on the grounds that appellant previously had not been placed in jeopardy and that his successful challenge to his sentence reinstated the government's right to prosecute on the greater offense. The district court was correct. Since the state court did not have jurisdiction to accept the plea and impose sentence, appellant has not been placed in jeopardy. Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, 276 (1975); Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114, 126 (1904); Ball v. United States,163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300, 302 (1896). Moreover, appellant's successful challenge to his plea-bargained sentence is a tacit repudiation of the bargain, allowing the government to prosecute him on the greater charge. Martinez v. Estelle, 527 F.2d 1330, 1331-32 (5th Cir. 1976); Arechiga v. Texas, 469 F.2d 646, 647 (5th Cir. 1972); Harrington v. United States, 444 F.2d 1190, 1194 (5th Cir. 1971).

3

The instant appeal involves only the narrow double jeopardy question of the legality of further prosecution, not the question of the legality of sentence if appellant is found guilty in such prosecution.

4

JUDGMENT AFFIRMED.

*

Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I