Briston v. Wholey , 307 F. App'x 616 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-22-2009
Briston v. Wholey
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3854
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ALD-66 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3854
DARRYLL LELAND BRISTON,
Appellant
v.
MATTHEW WHOLEY, ESQUIRE
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-08-cv-00935)
District Judge: Honorable Gary L. Lancaster
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
December 24, 2008
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: January 22, 2009)
OPINION
PER CURIAM
On November 2, 2004, Appellant Darryll Leland Briston was convicted in the
District Court for the Western District of Pennsylvania of deprivation of civil rights under
color of law, theft from an organization receiving federal funds, and two counts of
obstruction of justice. The conduct at the heart of the conviction involved Briston’s
unlawful seizure of roughly $5,800 found during the execution of an arrest warrant when
he was then chief of the Rankin, Pennsylvania Police Department. A few months after he
was convicted in federal court, Briston was charged in the Allegheny County Court of
Common Pleas with perjury for allegedly giving false testimony during a state
investigation into the same conduct that produced his federal conviction. Briston
unsuccessfully challenged the perjury charge in state court as a violation of
Pennsylvania’s double jeopardy statute, 18 Pa. Cons. Stat. § 111. After several
continuances, Briston’s state trial is currently set to begin on March 30, 2009. See
Commonwealth v. Briston, CP-02-CR-0005573-2005 (criminal docket pg. 1).
On July 7, 2008, Briston filed a “Notice of Removal,” which the District Court
properly construed as a petition for habeas corpus under 28 U.S.C. § 2241(c)(3). Therein,
Briston alleged that the ongoing state prosecution violates his Fifth Amendment
protection from double jeopardy because it is based on the same conduct that resulted in
his federal conviction. The District Court found that Briston had not exhausted his
federal double jeopardy claim at the state level, and that he was unable to demonstrate the
“extraordinary circumstances” needed to circumvent non-exhaustion. See Moore v.
DeYoung, 515 F.2d 437, 443 (3d Cir. 1975). As such, the District Court found that the
habeas petition’s underlying claim was procedurally defaulted. We disagree.
A habeas petitioner “need not have cited ‘book and verse’ of the federal
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constitution” in order to “fairly present” a federal claim at the state level for purposes of
exhaustion. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Indeed, he may
present the claim through any of the following mechanisms:
(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing constitutional
analysis in like fact situations, (c) assertion of the claim in terms
so particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Id. at 261-62 (quoting Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227,
1232 (3d Cir. 1992)). After reviewing both Briston’s “Rule 18 Pa. C.S.A. § 111 Motion
to Dismiss” before the Court of Common Pleas and his brief on appeal in the
Pennsylvania Superior Court, it is fair to say that Briston had asserted his double jeopardy
claim “in terms so particular as to call to mind” the Fifth Amendment’s proscription of
double jeopardy. Id. It follows, then, that he fully exhausted his federal double jeopardy
claim prior to filing his federal habeas petition.
Nonetheless, the District Court correctly found that even if it were to entertain the
merits of Briston’s habeas petition, the “dual sovereignty doctrine” barred the relief he
sought. See Bartkus v. Illinois, 359 U.S. 121, 132-33 (1959) (separate federal and state
prosecutions for same conduct does not violate double jeopardy clause).
There being no substantial question presented by Briston’s appeal from the
dismissal of his § 2241 habeas petition, we will summarily affirm the District Court’s
order dismissing the case. See LAR 27.4; I.O.P. 10.6.
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