Marcus Robinson v. Edward Thomas , 855 F.3d 278 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-11
MARCUS REYMOND ROBINSON,
Petitioner - Appellant,
v.
EDWARD THOMAS, Warden of Central Prison, Raleigh, North Carolina,
Respondent - Appellee.
No. 16-12
TILMON C. GOLPHIN,
Petitioner - Appellant,
v.
EDWARD THOMAS, Warden of Central Prison, Raleigh, North Carolina,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, Chief District Judge; Terrence W. Boyle, District Judge.
(5:16-hc-02028-D; 5:16-hc-02029-BO)
Argued: January 25, 2017 Decided: April 27, 2017
Before KING, AGEE, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge King and
Judge Floyd joined.
ARGUED: David Weiss, CENTER FOR DEATH PENALTY LITIGATION, Durham,
North Carolina, for Appellants. Danielle Marquis Elder, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
Donald H. Beskind, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina,
for Appellant Marcus Reymond Robinson. Kenneth J. Rose, CENTER FOR DEATH
PENALTY LITIGATION, Durham, North Carolina; Jay H. Ferguson, THOMAS,
FERGUSON & MULLINS, LLP, Durham, North Carolina, for Appellant Tilmon C.
Golphin. Roy Cooper, Attorney General of North Carolina, Jonathan P. Babb, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
2
AGEE, Circuit Judge:
After being sentenced to death upon first-degree murder convictions, Marcus
Robinson and Tilmon Golphin (collectively, “Petitioners”) sought post-conviction relief in
state court pursuant to North Carolina’s Racial Justice Act (“RJA”), N.C. Gen. Stat.
§§ 15A-2010 to 2012 (2009) (repealed 2013). Following separate evidentiary hearings,
the North Carolina trial court awarded relief under the RJA, reducing their death sentences
to life imprisonment. The State of North Carolina (“the State”) appealed, and the North
Carolina Supreme Court vacated and remanded their cases to the state trial court for
additional RJA proceedings. Petitioners then brought separate actions in federal district
court pursuant to 28 U.S.C. § 2241, each maintaining that a second RJA proceeding would
violate their rights under the Double Jeopardy Clause of the Fifth Amendment. The district
court abstained from exercising federal jurisdiction pursuant to Younger v. Harris, 401 U.S.
37 (1971), under the precept that a federal court “should not act to restrain a [state] criminal
prosecution, when the moving party has an adequate remedy at law and will not suffer
irreparable injury if denied equitable relief.” Id. at 43–44. As an alternate basis for its
judgment, the district court held that Petitioners had also failed to exhaust their state
remedies. For the reasons that follow, we affirm the district court’s decision to abstain
from intervening in Petitioners’ ongoing state court proceedings under Younger.
3
I.
A.
Enacted in August 2009, the RJA redefined eligibility for the death penalty in North
Carolina, providing that no person whose judgment was sought or obtained on the basis of
race could be sentenced to death, and establishing a procedure for previously sentenced
capital defendants to challenge their death sentences. N.C. Gen. Stat. § 15A-2010 (2009).
For such post-conviction challenges, the RJA authorized state trial courts to hold
evidentiary hearings and to make factual findings as to whether race was a significant factor
in leading to a death sentence. Id. § 15A-2012(a). For defendants who established
entitlement to post-conviction relief under the RJA, the statute mandated “that the death
sentence imposed by the judgment shall be vacated and the defendant resentenced to life
imprisonment without the possibility of parole.” Id. § 15A-2012(a)(3).
On July 2, 2012, the North Carolina General Assembly enacted amendments to the
RJA, but preserved its retroactive application to all death row inmates, as well as the
provision that a successful claim would result in vacatur of the death sentence and
imposition of a sentence of life imprisonment with no mechanism for appeal of that
sentence. See 2012 N.C. Sess. Laws 471, § 3(g).
The next year, the North Carolina General Assembly repealed the RJA effective
June 19, 2013. See 2013 N.C. Sess. Laws 368, § 5(a). The repeal statute provided that it
applied to all pending RJA motions filed prior to the effective date of the repeal, and that
all such motions were void. Id. § 5(d). In addition, the repeal statute also provided that it
4
applied to litigants who obtained relief under the RJA, but whose relief could be vacated
on appeal:
This section does not apply to a court order resentencing a petitioner to life
imprisonment without parole pursuant to the provisions of Article 101 of
Chapter 15A of the General Statutes prior to the effective date of this act if
the order is affirmed upon appellate review and becomes a final Order issued
by a court of competent jurisdiction. This section is applicable in any case
where a court resentenced a petitioner to life imprisonment without parole
pursuant to the provisions of Article 101 of Chapter 15A of the General
Statutes prior to the effective date of this act, and the Order is vacated upon
appellate review by a court of competent jurisdiction.
Id. (emphasis added).
B.
The state court proceedings for each petitioner are ongoing and present a complex
web of procedural history. We include such detail here as necessary to lend context to our
decision.
1.
In 1994, Robinson was convicted after a jury trial of first-degree murder for the
killing of Erik Tornblom, a 17-year-old rising senior in high school. Robinson and an
accomplice shot Tornblom in the face with a shotgun and then stole his car and $27. The
jury found two aggravating circumstances existed that were sufficient to impose the death
penalty and recommended the death sentence. The trial court imposed that sentence on
August 4, 1994. Robinson appealed both his conviction and sentence, but those appeals
were unsuccessful. See generally State v. Robinson, 463 S.E.2d 218 (N.C. 1995).
Robinson’s requests for state, see generally State v. Robinson, 539 S.E.2d 646 (N.C.
1999) (denying certiorari review of state trial court’s denial of post-conviction motion for
5
appropriate relief), and federal, see generally Robinson v. Polk, 438 F.3d 350 (4th Cir.
2006) (affirming the district court’s denial of a petition for the writ of habeas corpus), post-
conviction relief also failed.
In 2010, Robinson sought post-conviction relief under the RJA in the state trial
court. Robinson’s motion alleged that race was a factor in the prosecutor’s decision to seek
the death penalty and the exercise of peremptory strikes, as well as the jury’s decision to
impose the death penalty. After a two-week evidentiary hearing, the state trial court found
that racial disparities impacted Robinson’s death sentence and determined that the RJA
standards were satisfied so that Robinson was ineligible for the death penalty and entitled
to a sentence of life imprisonment. The state trial court entered a judgment vacating the
death sentence and resentencing Robinson to life imprisonment without parole.
2.
Golphin’s case history tracks a similar course. He was convicted of two counts of
first-degree murder for killing North Carolina State Highway Patrol Trooper Lloyd E.
Lowry and Cumberland County Deputy Sherriff David Hathcock and sentenced to death
for each murder. See generally State v. Golphin, 533 S.E.2d 168 (N.C. 2000). The
conviction and sentences were affirmed on direct appeal. Id.Golphin unsuccessfully pursued state, see generally State v. Golphin, 593 S.E.2d 84(N.C. 2004) (denying certiorari review of the denial of a state post-conviction motion for
appropriate relief), and federal, see generally Golphin v. Branker, 519 F.3d 168 (4th Cir.
2008) (affirming the district court’s denial of a petition for the writ of habeas corpus), post-
conviction review.
6
In 2010, Golphin also filed a state motion for post-conviction relief pursuant to the
RJA. Similar to Robinson, Golphin alleged race was a significant factor in the decisions
to seek and impose the death penalty. The state trial court held an evidentiary hearing and
concluded that statistical disparities and intentional discrimination affected Golphin’s trial
and capital sentencing. That court then vacated Golphin’s death sentence based upon both
the original RJA and amended 2012 version and re-sentenced Golphin to life imprisonment
without parole.
C.
The State petitioned the North Carolina Supreme Court for review of the orders
granting relief under the RJA for Robinson and Golphin in separate appeals, which
Petitioners opposed. In his preliminary response brief to the State’s request for a grant of
certiorari, Robinson failed to raise any double jeopardy argument. Golphin, however,
asserted further proceedings in the state trial court would violate his rights under the
Double Jeopardy Clause in his preliminary brief opposing certiorari.
The North Carolina Supreme Court granted the State’s petitions, and briefing on the
merits ensued. Both Petitioners proffered Double Jeopardy Clause arguments in their
merits briefing.
In December 2015, the North Carolina Supreme Court vacated the trial court’s RJA
orders in both cases and remanded for further proceedings, but did not explicitly address
Petitioners’ double jeopardy arguments. State v. Augustine, 780 S.E.2d 552 (N.C. 2015)
(mem.); State v. Robinson, 780 S.E.2d 151, 151–52 (N.C. 2015). Both Robinson and
Golphin filed motions for clarification of the Supreme Court’s decision, reasserting their
7
double jeopardy arguments, but those motions were denied without explanation. State v.
Robinson, 782 S.E.2d 324 (N.C. 2016) (mem.); State v. Augustine, 782 S.E.2d 323 (N.C.
2016) (mem.).
The mandates of the North Carolina Supreme Court for further RJA proceedings
issued to the trial court in January 2016. 1
D.
In February 2016, Robinson and Golphin separately petitioned for writs of habeas
corpus under 28 U.S.C. § 2241 in the United States District Court for the Eastern District
of North Carolina, seeking relief from a second RJA proceeding based on the Double
Jeopardy Clause. They also moved the district court to stay further proceedings in state
court.
The district court denied Petitioners’ requests to enjoin further state court
proceedings and dismissed the petitions without prejudice. In separate opinions that mirror
one another, the district courts abstained from exercising federal jurisdiction pursuant to
Younger v. Harris, 401 U.S. 37 (1971), and, alternatively, held that Petitioners had failed
to exhaust their double jeopardy claims in state court. Golphin v. Joyner, No. 5:16-HC-
1
During the pendency of the State’s appeal, in June 2013, the North Carolina
General Assembly repealed the RJA. See 2013 N.C. Sess. Laws 368, § 5(a).
In May 2016, Petitioners and two other RJA defendants filed a petition for a writ of
certiorari in the Supreme Court of the United States seeking review of the North Carolina
Supreme Court’s decisions. The petition did address Robinson and Golphin’s double
jeopardy contentions. See Robinson v. North Carolina, No. 15-1397. Their certiorari
petition was denied by the Supreme Court of the United States on October 3, 2016.
Robinson v. North Carolina, 137 S. Ct. 67 (2016) (mem.).
8
2029-BO, slip op., at *8–11 (E.D.N.C. June 6, 2016); Robinson v. Joyner, No. 5:16-HC-
2028-D, slip op., at *8–11 (E.D.N.C. June 4, 2016).
Petitioners timely filed separate notices of appeal, and we consolidated their cases
for purposes of this appeal. As noted, at the time their federal appeals were filed,
Petitioners’ RJA motions were pending on remand in the state trial court. Since we held
oral argument on January 25, 2017, the state trial court ruled on Petitioners’ pending RJA-
based motions. That court concluded on North Carolina statutory grounds that the RJA
repeal bill applies to Petitioners and, although they raised double jeopardy objections, the
state court did not address those arguments. As a result, Petitioners’ state court proceedings
are ongoing through the appeals process in North Carolina. 2 We have jurisdiction to
entertain this appeal from the district court’s dismissal order under 28 U.S.C. §§ 1291,
2253.
II.
State prisoners, like Golphin and Robinson, must exhaust their state remedies before
filing a habeas petition in federal court. Timms v. Johns, 627 F.3d 525, 530–31 (4th Cir.
2010) (“As a general rule, in the absence of exceptional circumstances where the need for
the remedy afforded by the writ of habeas corpus is apparent, courts require exhaustion of
alternative remedies before a prisoner can seek federal habeas relief.” (internal alterations,
2
Petitioners sought and have been granted an extension of time to petition for writs
of certiorari in the North Carolina Supreme Court to appeal the recent decision of the state
trial court.
9
citations, and quotation marks omitted)). The purpose of the exhaustion requirement is to
“giv[e] the State the opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010). The
State contends Petitioners did not exhaust their state remedies before filing their petitions
in federal court.
A habeas petitioner satisfies the exhaustion requirement by “‘fairly present[ing]’ his
claim in each appropriate state court . . . thereby alerting that court to the federal nature of
the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365–66 (1995)). A petitioner must show that “both the operative facts and the
controlling legal principles [were] presented to the state court.” Jones, 591 F.3d at 713(quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). That burden has been met
by Petitioners in this case.
Petitioners filed separate RJA motions in state court. Upon the favorable ruling by
the state trial court in both cases, the State sought certiorari review in the North Carolina
Supreme Court. Golphin raised a double jeopardy argument in his brief opposing certiorari
and again in his merits brief. 3 Unlike Golphin, Robinson did not raise the double jeopardy
claim in response to the state certiorari petition, but he did raise it in his brief on the merits.
North Carolina does not require a party to raise arguments in response to a petition for a
3
The district court in Golphin’s case found the double jeopardy claim unexhausted
because it believed Golphin did not raise the claim in response to the state’s petition for
writ of certiorari. Golphin, No. 5:16-HC-2029-BO, slip op. at *11–12. That factual
determination was clearly erroneous, as Golphin did, in fact, raise double jeopardy
objections in his brief opposing certiorari.
10
writ of certiorari in order to preserve those arguments for merits briefing should certiorari
be granted. See N.C. R. App. P. 21. Both Petitioners’ pleadings were thus adequate to
exhaust available state court remedies before seeking habeas relief in federal court, and the
State points to no authority to the contrary. See Jenkins v. Fitzberger, 440 F.2d 1188, 1189
(4th Cir. 1971) (“[T]he exhaustion requirement of 28 U.S.C. § 2254 is not a jurisdictional
concept but simply a flexible matter of comity[.]” (internal quotation marks omitted)). 4
The State nonetheless urges that Petitioners’ double jeopardy claims are not
exhausted because they “did not become ripe until after the Supreme Court of North
Carolina entered its [remand] order[.]” Response Br. 20. Not so. The double jeopardy
argument became ripe upon the State’s appeal of the trial court’s grant of Petitioners’ RJA
motions. See Smalis v. Pennsylvania, 476 U.S. 140, 142 (1986) (“[W]hen a trial court
enters such a judgment [of acquittal], the Double Jeopardy Clause bars an appeal by the
prosecution[.]”); see also N.C. Gen. Stat. § 15A-1445(a) (permitting adjudication of a
double jeopardy claim as a threshold matter on appeal).
4
The State itself recognized and addressed the double jeopardy issue in its opposing
brief before the North Carolina Supreme Court, which further evidences Petitioners’ fair
presentment of their claims. See Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam)
(finding that the State of Alabama’s opposition in its brief to petitioner’s constitutional
claim in state court supported conclusion that petitioner had fairly presented that claim);
Jones, 591 F.3d at 714 (observing the Commonwealth’s addressing double jeopardy issue
in its brief before the Virginia Supreme Court demonstrated fair presentment of that claim).
That the North Carolina Supreme Court declined to address Petitioners’ double jeopardy
claims does not alter the fair presentation of those claims. All that is required for purposes
of exhaustion is that Petitioners “must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Petitioners
did so here.
11
For these reasons, the State’s argument that Petitioners failed to exhaust their state
remedies before seeking habeas relief in federal court lacks merit. 5
III.
A.
The principal issue on appeal is whether the district court appropriately abstained
under Younger v. Harris, 401 U.S. 37 (1971), from exercising jurisdiction, thus declining
to reach Petitioners’ claims under the Double Jeopardy Clause. We review for abuse of
discretion a district court’s decision to abstain. Nivens v. Gilchrist (Nivens I), 319 F.3d
151, 152 (4th Cir. 2003).
5
Without pointing to any deficiency in the petitions, the State also posits that
Petitioners should have filed their federal habeas petitions under 28 U.S.C. § 2254 instead
of § 2241. We need not resolve this issue as the district court properly abstained from
exercising jurisdiction over the claims under Younger v. Harris, 401 U.S. 37 (1971).
Section 2254 applies to most post-conviction proceedings that are brought by petitioners
who are “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); In re
Wright, 826 F.3d 774, 783 (4th Cir. 2016) (“[W]hen a prisoner being held pursuant to the
judgment of a State court files a habeas petition claiming the execution of his sentence is
in violation of the Constitution, laws, or treaties of the United States, the more specific §
2254 and all associated statutory requirements shall apply, regardless of the statutory label
the prisoner chooses to give his petition.” (internal quotation marks omitted)). However,
a petition under § 2241 may be the appropriate vehicle for Petitioners’ claims here because,
at the time the petitions were filed, Petitioners likely faced an indeterminate sentence as a
result of ongoing state RJA proceedings and, therefore, were not in custody pursuant to a
state court judgment. See Berman v. United States, 302 U.S. 211, 212 (1937) (“Final
judgment in a criminal case means sentence. The sentence is the judgment.”); Harrison v.
Gillespie, 640 F.3d 888, 896 (9th Cir. 2011) (“In effect, Harrison is currently in custody
under an indeterminate sentence for his first-degree murder conviction, and he is attacking
the possibility of receiving a death sentence in the future. We therefore have jurisdiction
under 28 U.S.C. § 2241.”).
12
The Supreme Court in Younger articulated the “national policy forbidding federal
courts to stay or enjoin pending state court proceedings except under special
circumstances.” 401 U.S. at 41; accord Kugler v. Helfant, 421 U.S. 117, 123 (1975) (“[I]n
the absence of exceptional circumstances creating a threat of irreparable injury both great
and immediate, a federal court must not intervene by way of either injunction or declaratory
judgment in a pending state criminal prosecution.” (internal quotation marks omitted)).
The Younger doctrine rests on the fundamental precepts of equity and comity. “[C]ourts
of equity should not act, and particularly should not act to restrain a criminal prosecution,
when the moving party has an adequate remedy at law and will not suffer irreparable injury
if denied equitable relief.” Younger, 401 U.S. at 43–44. The comity notion relates to “a
proper respect for state functions, a recognition of the fact that the entire country is made
up of a Union of separate state governments, and a continuance of the belief that the
National Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.” Id. at 44.
The Supreme Court explained in Middlesex City Ethics Committee v. Garden State
Bar Ass’n, 457 U.S. 423 (1982), that even if a federal court could exercise jurisdiction, it
should refrain from doing so if (1) there is an ongoing state judicial proceeding that began
prior to substantial progress in the federal proceeding, (2) that proceeding implicates
important, substantial, or vital state interests, and (3) there is an adequate opportunity to
raise constitutional challenges within the framework of the state judicial process. Id. at
432; Nivens I, 319 F.3d at 153.
13
All of the factors articulated in Middlesex are present in this case. As to the first
Middlesex factor, Petitioners brought their petitions in federal court in an attempt to stop
ongoing state proceedings with respect to their RJA motions. In relation to the second
factor, construction of the RJA and subsequent repeal statute, which may apply to
Petitioners, lies at the heart of this case. Undoubtedly, North Carolina has an important,
substantial, and vital interest in interpreting its criminal laws, and that interest is
strengthened here where those laws present a complex web of legislative amendments and
history. See Younger, 401 U.S. at 43–44. Third, there are ongoing state proceedings in
which Petitioners have an adequate opportunity to present their argument that a second
RJA hearing would violate their double jeopardy rights. Although they argue the state
courts are not their preferred venue, “[m]inimal respect for the state processes, of course,
precludes any presumption that the state courts will not safeguard federal constitutional
rights.” Middlesex, 457 U.S. at 431. Because the basic requirements for Younger
abstention are present in this case, the district court did not abuse its discretion in abstaining
unless Petitioners’ claims fall within an exception to the “fundamental policy” that federal
courts should abstain from interfering in state criminal proceedings. Younger, 401 U.S. at45–46.
B.
A federal court may disregard Younger’s mandate to abstain from interfering with
ongoing state proceedings only where “extraordinary circumstances” exist that present the
possibility of irreparable harm. Kugler, 421 U.S. at 124; Nivens v. Gilchrist (Nivens II),
14
444 F.3d 237, 241 (4th Cir. 2006). The Supreme Court in Younger explained this limited
deviation from the “fundamental policy” of federal abstention:
[W]hen absolutely necessary for protection of constitutional rights, courts of
the United States have power to enjoin state officers from instituting criminal
actions. But this may not be done, except under extraordinary circumstances,
where the danger of irreparable loss is both great and immediate. Ordinarily,
there should be no interference with such officers; primarily, they are
charged with the duty of prosecuting offenders against the laws of the state,
and must decide when and how this is to be done. The accused should first
set up and rely upon his defense in the state courts, even though this involves
a challenge of the validity of some statute, unless it plainly appears that this
course would not afford adequate protection.
401 U.S. at 45.
Federal intervention may be proper where there is a showing of “bad faith or
harassment by state officials,” or where the state law to be applied in the criminal
proceeding is “flagrantly and patently violative of express constitutional prohibitions.
Nivens II, 444 F.3d at 241 (citing Kugler, 421 U.S. at 124). Petitioners do not allege—and
the record does not remotely suggest—that the State engaged in bad faith or harassment.
Nor do Petitioners allege that the relevant North Carolina statutes are “patently violative”
of federal constitutional provisions. Rather, Petitioners initiated the proceedings in state
court in the first place seeking to avail themselves of the RJA remedy. And Petitioners
concede that they have raised the double jeopardy argument in state court where
proceedings are ongoing. Petitioners, therefore, must point to some other extraordinary
circumstance “demonstrating that they do not have an adequate remedy at law and the
danger of irreparable injury if they are denied equitable relief is both great and immediate.”
15
Nivens I, 319 F.3d at 155. For the reasons detailed below, Petitioners fail to make that
showing.
C.
1.
Petitioners contend that Younger abstention here is inappropriate under the rationale
stated in Gilliam v. Foster, 75 F.3d 881 (4th Cir. 1996) (en banc). “[T]his Court and the
other courts of appeals ‘have unanimously recognized that a colorable claim that a second
trial will violate a defendant’s double jeopardy right is a preeminent example of one of the
very few extraordinary circumstances justifying federal court intervention in a pending
state criminal proceeding,’” according to Petitioners. Opening Br. 26 (quoting Gilliam, 75
F.3d at 904). Stated differently, Petitioners posit that under Gilliam an allegation of “a
colorable claim” that a double jeopardy violation may occur constitutes an exceptional
circumstance that justifies federal court intervention, and no separate showing is necessary.
Petitioners are not the first to propose a broad reading of Gilliam, and this Court has
previously rejected an “overly expansive interpretation of that case.” Nivens I, 319 F.3d at
159.
The issue on appeal in Gilliam was “whether the state trial judge exercised sound
discretion in granting the prosecution’s motion for a mistrial because the jury viewed
certain photographs prior to their formal admission into evidence.” 75 F.3d at 885. We
held that the petitioners demonstrated they faced a substantial likelihood of an irreparable
double jeopardy violation, which qualified as an extraordinary circumstance under
Younger. Id. at 893–95. Our decision not to abstain in that case was rooted in the concerns
16
expressed in Younger, that a “portion of the constitutional protection [the Double Jeopardy
Clause] affords would be irreparably lost if Petitioners were forced to endure the second
trial before seeking to vindicate their constitutional rights at the federal level[.]” Id. at 904;
accord Abney v. United States, 431 U.S. 651, 660 (1977) (observing the constitutional
protection afforded by the Double Jeopardy Clause “would be significantly undermined if
appellate review of double jeopardy claims were postponed until after conviction and
sentence”).
In Nivens I, we clarified the scope of our decision in Gilliam. Nivens I concerned
whether a district court properly abstained under Younger from intervening in a pending
state criminal drug prosecution that began after the appellants had paid North Carolina’s
drug tax. Nivens I, 319 F.3d 152. The appellants argued that the Double Jeopardy Clause
barred the later criminal prosecution because the drug tax was a criminal penalty that had
been satisfied; in effect, they alleged they were being twice punished for the same offense.
Id. at 152–53. Relying on Gilliam, the appellants argued that abstention was improper
because “a colorable claim of a double jeopardy violation [was] sufficient to establish
exceptional circumstances warranting federal court intervention without any separate
showing.” Id. at 159 (internal quotation marks omitted). We rejected that reading of
Gilliam, explaining “[w]e did not hold that an allegation of a double jeopardy violation
automatically precludes Younger abstention.” Id.Critically, the Nivens appellants had access to avenues for relief in their ongoing
criminal prosecutions and state procedures that would allow them to raise their double
jeopardy argument before any trial on the merits. We were specific in holding Younger
17
abstention was appropriate because “[u]nlike the defendants in [Gilliam], Appellants yet
have access to pretrial avenues in their current criminal prosecutions whereby they may
raise their constitutional contentions before any double jeopardy injury could inure.” Id.As directly relevant to the arguments Petitioners raise now, we further held that:
Because jeopardy does not attach during pretrial procedures and motions,
and Appellants have state procedures whereby they may foreclose a violation
of their double jeopardy rights, any double jeopardy harm at this stage of
Appellants’ litigation is neither immediate nor irreparable. Appellants must
raise their contentions in their current prosecution and appeal any undesirable
decision before a federal district court asserts jurisdiction.
Id. at 159–60 (internal citations omitted). As a consequence, “[b]ecause Appellants have
not made a showing of an immediate and irreparable constitutional injury absent federal
court intervention, [Gilliam] does not permit us to disregard Younger.” Id. at 160. We
held, accordingly, that the district court properly abstained from exercising federal
jurisdiction:
None of this is to say that Appellants ultimately will not prevail on their
double jeopardy claim. It is only to say that where the alleged double
jeopardy violation is far from clear, immediate, or irreparable, the important
Younger policy of allowing the State to pursue its prosecution free from
federal court intervention outweighs the Appellants’ interest in having the
double jeopardy issue resolved in a federal forum.
Id. at 162.
We reaffirmed that holding when presented with the appropriateness of Younger
abstention in a later appeal by the same parties. See Nivens II, 444 F.3d at 244 (“[T]he fact
that [Petitioners] were able to present their claims and have them addressed in state court
suffices and continues to make federal intervention inappropriate.”).
18
Nivens I and II control the disposition of this case. Unlike the petitioners in Gilliam,
but like the petitioners in Nivens I and II, Petitioners here currently have access to the state
trial and appellate courts to present their double jeopardy claims. They are now in the
midst of that process, which they must complete before they can make a claim to federal
jurisdiction. See id. Petitioners concede that they have raised their double jeopardy
objections before the state trial court during the ongoing RJA proceedings. See Opening
Br. 24, n.14 (“Petitioners acknowledge that they have re-raised the double jeopardy claim
in pleadings submitted to the state trial court on remand.”). Consequently, Petitioners have
not established they will suffer an immediate and irreparable constitutional deprivation.
Since we held oral argument in this case, Petitioners did raise their double jeopardy
objections in the state trial court on remand, but did not prevail on that position. Even so,
our holding is unchanged by the fact that Petitioners have so far been unsuccessful on the
merits. “Abstention does not suddenly become improper simply because Appellants lost
on the merits in the state court.” Nivens II, 444 F.3d at 243; accord Nivens I, 319 F.3d at
158 (“Simply put, an assertion that the North Carolina courts will likely decide a
constitutional issue in a way contrary to what appellants believe the Constitution mandates
is not a sufficient basis to avoid application of Younger abstention.”). The State need only
allow Petitioners the opportunity to raise their constitutional argument, it need not agree
with that argument. Moore v. Sims, 442 U.S. 415, 425–26 (1979) (“Certainly, abstention
is appropriate unless state law clearly bars the interposition of the constitutional claims.”);
accord Nivens II, 444 F.3d at 243. That Petitioners have not yet secured the result they
19
seek does not nullify the fact that they had—and, indeed, exercised—the opportunity to
raise their double jeopardy claims in state court. See Younger, 401 U.S. at 45.
In short, we are constrained by Nivens I and II to affirm the district court’s decision
that abstention under Younger is appropriate in this case. Petitioners have been able to
present their double jeopardy arguments in the state court prior to any proceeding on the
merits of their RJA claim. If Petitioners’ state court appeals prove unsuccessful, they may
have an opportunity at that point to pursue habeas relief in federal court going forward. On
that score, we offer no opinion one way or the other. See 28 U.S.C. §§ 2241, 2254.
Petitioners may not, however, seek federal intervention into their pending state court
litigation for a violation of the Double Jeopardy Clause because they have failed to show
that North Carolina’s pretrial procedures are not able to afford them adequate protection. 6
2.
Petitioners attempt to distinguish the Nivens line of cases because the likelihood of
success in that case was deemed “far from clear,” and so they assert the equities favored
abstention there. They contend that their case, though, presents a more substantial double
jeopardy argument. We are not convinced.
Petitioners seek an application of double jeopardy jurisprudence that has an unclear
precedential basis and wish to apply it to a novel state law. They rely on Bullington v.
6
The State has conceded Petitioners are entitled to raise their double jeopardy
argument in state court, and we accept the State’s representation at oral argument that it
would not assert as a defense a procedural bar to Petitioners’ making a double jeopardy
argument during the state proceedings by some reading of the North Carolina Supreme
Court’s order. Oral Argument Audio Recording 20:48-22:40.
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Missouri, 451 U.S. 430 (1981), and its progeny, which held the Double Jeopardy Clause
prohibits the state from resentencing the defendant to death after the sentencer has
effectively acquitted the defendant of that penalty by imposing a life sentence following a
sentencing proceeding that bears substantially all the hallmarks of a trial. Petitioners rely
on the premise that the RJA proceeding transposes into a traditional sentencing hearing in
a capital case where the government must demonstrate aggravating factors that warrant the
death penalty beyond a reasonable doubt.
Petitioners’ premise is “far from clear.” While the RJA proceedings share some
characteristics of a trial, several features distinguish its statutory scheme from that of a
traditional capital case. For one thing, the RJA does not utilize the familiar aggravating
and mitigating circumstances approach. Instead, it utilizes a novel post-conviction capital-
eligibility criterion unrelated to the particular circumstances of the offense or to any
articulated trial error. And the burden of proof under the RJA differs from that of the
traditional capital-sentencing proceeding where the State must prove the existence of
aggravating circumstances beyond a reasonable doubt. In an RJA proceeding, by contrast,
the burden of proof rests with the petitioner under a preponderance of the evidence
standard. Such procedural variances appear to be important under the relevant Supreme
Court precedent. See Bullington, 451 U.S. at 446 (“Missouri’s use of the reasonable-doubt
standard indicates that in a capital sentencing proceeding, it is the State, not the defendant,
that should bear almost the entire risk of error.” (internal quotation marks omitted));
Arizona v. Rumsey, 467 U.S. 203, 210 (1984) (“The usual rules of evidence govern the
admission of evidence of aggravating circumstances, and the State must prove the existence
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of aggravating circumstances beyond a reasonable doubt.”). Thus, while we do not reach
the merits of Petitioners contentions, we also do not accept their premise that their cases
are unquestionably destined to succeed. As a consequence, Petitioners do not proffer a
credible basis upon which to distinguish this Court’s germane holdings in Nivens I and II.
Petitioners also rejoin that Nivens I and II are inapplicable because the double
jeopardy problem presented in that case involved multiple punishments, not multiple
prosecutions. The double jeopardy issue in this case relates to multiple prosecutions, they
counter. That simply isn’t so, as the only issue in this case is punishment, specifically,
whether Petitioners are entitled to an alteration of their death penalty sentence under North
Carolina’s RJA. There is no second “prosecution” by the State.
In short, Petitioners have not demonstrated exceptional circumstances or substantial
danger of irreparable harm that justifies federal intervention in ongoing state proceedings.
***
In conclusion, we are not tasked with determining whether Petitioners’ double
jeopardy claims will ultimately prove successful. Our sole consideration is whether a
federal court, under Younger, should take the remarkable step of intervening in ongoing
state court proceedings to decide federal constitutional issues for that court. We should not
and do not take such a drastic departure from the normal course as none of the exceptions
to Younger applies. We hold, therefore, the district court did not abuse its discretion when
it abstained from exercising jurisdiction to decide Petitioners’ double jeopardy claims.
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IV.
For the reasons stated above, we affirm the judgments of the district courts
dismissing the petitions without prejudice.
AFFIRMED
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