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CLAUSER v. SHADID

February 8, 1983

JOHN CLAUSER, PETITIONER,
v.
GEORGE P. SHADID, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Baker, District Judge.

ORDER

The petitioner, John Clauser, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner alleges that his conviction for delivery of a controlled substance violates the double jeopardy clause of the fifth amendment and the due process clause of the fourteenth amendment. The petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b). The respondents have submitted an answer to the petition.

I.

The petitioner claims that his retrial and conviction offend the double jeopardy clause and the due process clause. The essential facts relating to the petitioner's claim are not in dispute. The petitioner and a co-defendant were tried for unlawful delivery of a controlled substance. During the trial, after the state had presented nearly all of its evidence, it became apparent that certain state law enforcement officers had lied or misrepresented evidence to the grand jury which had indicted the petitioner. The petitioner and his co-defendant, Arthur Jones, moved for a judgment of acquittal, claiming that insufficient evidence existed to sustain a conviction. The trial court declined to grant the motion for acquittal, indicating that adequate and proper evidence had been produced to sustain a conviction. The court concluded, however, that the trial should be terminated, explaining that an indictment based partly on misleading or false testimony or evidence was invalid. Furthermore, the court determined that a conviction based on an invalid indictment could not be upheld on appeal. Record at 193-207.

The petitioner and his co-defendant Jones were subsequently reindicted. Both moved for dismissal of the indictment on the grounds of double jeopardy. The trial court granted Jones' motion but denied the petitioner's motion for dismissal. Upon retrial the petitioner was convicted for the unlawful delivery of a controlled substance, the same offense for which he was first tried.

The petitioner appealed his conviction to the state appellate court on the ground that his reindictment, retrial and conviction violated the double jeopardy clause. His conviction was upheld by the appellate court, which found the United States Supreme Court's decision, United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), to be controlling. People v. Clauser, 73 Ill. App.3d 145, 29 Ill.Dec. 368, 391 N.E.2d 793 (1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).

The petitioner in Scott moved during trial to dismiss two counts of the indictment on the ground of prejudicial preindictment delay. The Supreme Court dealt with the propriety of a government appeal from the trial court's order granting the petitioner's motion. The Court first determined that 18 U.S.C. § 3731, the statute allowing government appeals from orders dismissing indictments, permitted such appeals except when prohibited by the double jeopardy clause. Turning to an analysis of the fifth amendment proscription of double jeopardy, the Court found that the petitioner, by moving for dismissal on some ground unrelated to his factual guilt or innocence, had deliberately chosen to forego his valued right to have his guilt or innocence determined by the first trier of fact. Consequently, a government appeal and the potential retrial of the petitioner were not barred by the double jeopardy clause.

The state appellate court interpreted Scott to hold that double jeopardy is not offended if a dismissal at the request of the defendant is granted on some basis other than the insufficiency of the evidence to sustain a conviction. 73 Ill. App.3d at 146-47, 29 Ill.Dec. 368, 391 N.E.2d 793.

II.

Subsequently, the petitioner filed this petition for a writ of habeas corpus. The petitioner argues that the state appellate court misapplied the Scott decision and claims that his conviction violated the double jeopardy clause and the due process clause. The petitioner first contends that Scott does not apply when the petitioner moves only for acquittal, as he did in this case. Rather, Scott applies only when a defendant deliberately chooses to terminate the proceedings against him on a basis unrelated to factual guilt or innocence.

The petitioner also argues that his case differs markedly from Scott because Scott dealt with the propriety of a government appeal from an order favoring a defendant. He argues that his case lacked the safeguard of appellate review of the order terminating the original trial prior to any retrial.

The petitioner makes one further double jeopardy argument. Noting that retrials occasioned by bad faith prosecutorial conduct can offend double jeopardy, the petitioner argues that the misconduct of the state law enforcement officers before the grand jury should be attributed to the prosecutor.

Finally, the petitioner argues that his retrial and conviction violate the due process clause of the fourteenth amendment. He claims that the trial court's ruling which granted his co-defendant's motion for dismissal, but denied the petitioner's motion, shocks ...


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