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