The opinion of the court was delivered by: NEILL
Petitioner seeks a writ of habeas corpus in this Court after being denied such relief in state court.
Petitioner was convicted of rape in 1959 in the Washington State Superior Court for Benton County and sentenced to a maximum of sixty years imprisonment. He was paroled from the Washington State Penitentiary September 28, 1970. On February 3, 1971 he was arrested for an alleged abduction and assault with intent to rape in Seattle, Washington. A parole revocation hearing based on the new criminal charges was commenced but petitioner chose not to reveal the identity of his alleged alibi witnesses. At the request of his counsel, the hearing was continued pending the outcome of petitioner's prosecution for the new offenses in King County Superior Court.
At petitioner's bench trial in King County Superior Court, the victims of the alleged assault positively identified him as the man who had abducted and attempted to rape them. However, petitioner's girlfriend and a woman from Portland, Oregon came forth and testified he had been in Portland the night the alleged offenses occurred in Seattle. Based on this alibi testimony, and specifically on the "appearance and demeanor" of the Portland woman as she testified, the trial court found a "reasonable doubt . . . as to whether or not this defendant was the man who committed the offense." Therefore, petitioner was acquitted of all the charges against him.
Following petitioner's acquittal, the Parole Board reconvened its hearing and considered the same evidence presented at the trial, with the exception that the trial transcript of the Portland woman's testimony was read into the record in lieu of her live testimony. The transcript was used because petitioner allegedly could not afford to pay her travel costs. At the close of the hearing, the hearing officer found that, by a preponderance of the evidence, petitioner had committed the assaults and attempted rapes. On June 21, 1971, the hearing officer found that this conduct violated petitioner's conditions of parole. Based on these violations, petitioner's parole was revoked and he was recommitted to a fifteen year sentence commencing June 21, 1971.
Petitioner exhausted his state remedies via petitions for writs of habeas corpus in the Washington Court of Appeals and Washington State Supreme Court. These petitions were denied. Standlee v. Smith, 83 Wash.2d 405, 518 P.2d 721 (1974).
Petitioner's contentions here are identical to those raised in his state habeas corpus petition. He argues that the revocation of his parole following acquittal in superior court on identical charges violated the doctrine of collateral estoppel as embodied in the Double Jeopardy Clause of the Fifth Amendment, Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and as applied to the states through the Fourteenth Amendment Due Process Clause. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Further, petitioner argues that his inability to pay the travel costs to enable the Portland woman to testify in person at his revocation hearing denied him equal protection of the laws in violation of the Fourteenth Amendment.
This Court is persuaded that the Writ must issue. Although there is no binding precedent clearly on point, a long line of Supreme Court decisions dealing with the civil imposition of punitive sanctions based on criminal conduct indicates that collateral estoppel bars the Parole Board from relitigating the fact of petitioner's guilt. Further, the concept of due process as it has recently been molded and fashioned in the area of probation and parole revocations likewise dictates this result.
In Ashe v. Swenson, supra, the Supreme Court held that collateral estoppel inheres in the Double Jeopardy Clause to prevent relitigation in separate criminal prosecutions of facts necessary to each for a conviction. The Ashe court characterized collateral estoppel as
. . . when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
397 U.S. at 443, 90 S. Ct. at 1194. The Ashe court held that, after a defendant had once been acquitted of robbing one of six persons, all of whom had been simultaneously robbed by the same three or four men, the state could not subsequently prosecute him for robbing one of the other six. The court reasoned that the acquittal could only have been based on a jury finding that the defendant was not one of the men who committed the robberies. Therefore, collateral estoppel barred a subsequent finding to the contrary because relitigation of this fact would have forced the defendant to "run the gantlet" again. Id. at 446, 90 S. Ct. 1189.
This Court does not conclude that petitioner's criminal prosecution and subsequent revocation based on the same conduct constitutes double jeopardy in the usual sense of that term where a person is prosecuted twice by the State for the same offense. Jones v. Breed, 497 F.2d 1160 (9th Cir. 1974). Such a conclusion would contravene the traditional notion that revocation of parole is a continuing consequence of the original conviction from which parole was granted and is not a consequence of the offense on which the revocation is based. Brown v. Warden, United States Penitentiary, 351 F.2d 564, 567 (7th Cir. 1965), cert. denied 382 U.S. 1028, 86 S. Ct. 651, 15 L. Ed. 2d 541 (1966), United States ex rel. Carioscia v. Meisner, 331 F. Supp. 635, 645 (N.D.Ill., E.D.1971). Rather, Ashe defines the principle that double jeopardy can occur in another sense when an ultimate fact upon which a person's freedom depends is litigated twice between him and the State, irrespective of whether that fact is litigated in the context of the same or different offenses. In this important respect Ashe broadens the concept of double jeopardy to encompass the situation presented in this case where the initial criminal charge and subsequent parole revocation are technically based on the commission of wholly separate offenses, but where the same facts are determinative of guilt for each:
The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.
The Parole Board and State Supreme Court distinguished Ashe on the ground that it involved two criminal prosecutions based on the same incident, whereas petitioner here was subjected first to a criminal prosecution and then to a parole revocation. Relying on Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938) and Neaderland v. Commissioner, 424 F.2d 639 (2d Cir. 1970), the Parole Board reasoned and the Washington State Supreme Court held that the lesser burden of proof applicable to parole revocations vis-a-vis criminal prosecutions precluded application of collateral estoppel and permitted the Parole Board to find by a preponderance of the evidence that petitioner had committed the alleged offenses, even though the state court had found a reasonable doubt as to his guilt. 83 Wash.2d at 408-409, 518 P.2d 721. Respondent State of Washington urges this Court to follow the reasoning of the Washington State Supreme Court.
Conversely, petitioner cites Barrows v. Hogan, 379 F. Supp. 314 (M.D.Pa.1974) and People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43 (1974) in support of his contention. In Barrows v. Hogan, supra the court held that, where a prison inmate had been acquitted by a jury of an alleged assault on a federal officer, prison officials could not deprive him of good time credits by finding him guilty of the same offense under a lesser burden of proof. The Barrows court found the lesser burden of proof argument, urged herein by respondents, to be "not persuasive" in light of the fact that petitioner in that case would have been released immediately but for the loss of good time credit. Since the petitioner's loss resulted in "an immediate deprivation of liberty", the court found the requirements of due process "more urgent" and distinguished the usual good time forfeiture situations where a prisoner's rights are more limited. Barrows, supra 379 F. Supp. at 316.
Similarly in People v. Grayson, supra, the Illinois Supreme Court held that the doctrine of collateral estoppel precluded the state from revoking a defendant's probation for an alleged robbery after the defendant had been acquitted of the same charge in state court. The Illinois court acknowledged the lesser burden of proof applicable to probation revocations, but relied on Ashe v. Swenson, supra to hold that relitigation of the same issue was barred by collateral estoppel, irrespective of the lesser burden of proving a probation violation. 319 N.E.2d at 45. The court stated:
Although proceedings may be civil in form they may be criminal in nature, ( United States v. United States Coin and Currency, 401 U.S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434), and the individual facing probation revocation may lose his liberty ...