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decided: April 18, 1984.



White, J., delivered the opinion of the Court, in which Blackmun and Rehnquist, JJ., joined; in Parts I and II of which Brennan, Marshall, and Stevens, JJ., joined; and in Parts I, II-B, III, and IV of which Burger, C. J., and Powell, J., joined. Brennan, J., filed an opinion concurring in part and concurring in the judgment, in which Marshall, J., joined, post, p. 313. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Burger, C. J., joined, post, p. 327. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 328. O'connor, J., filed an opinion concurring in the judgment, post, p. 337.

Author: White

[ 466 U.S. Page 296]

 JUSTICE WHITE delivered the opinion of the Court.

We granted certiorari, 463 U.S. 1206 (1983), to review a decision of the Court of Appeals for the First Circuit affirming the issuance of a writ of habeas corpus. The Court of Appeals agreed with the District Court that the trial de novo of respondent Lydon, pursuant to Massachusetts' "two-tier"

[ 466 U.S. Page 297]

     system for trying minor crimes, would violate his right not to be placed twice in jeopardy for the same crime, because it determined that insufficient evidence of a critical element of the charge was adduced at the first-tier trial. We reverse.


Under Massachusetts law, a defendant charged with certain crimes in Boston Municipal Court may elect either a bench trial or a jury trial. Mass. Gen. Laws Ann., ch. 218, §§ 26, 26A (West Supp. 1983-1984). If a defendant chooses a jury and is convicted, he has the normal appellate process open to him, while a defendant dissatisfied with the results of a bench trial, if he elects that course, has an absolute right to a trial de novo before a jury.*fn1 §§ 26 and 27A. A convicted defendant who has chosen a bench trial need not allege error at that trial to obtain de novo review. On the other hand, he may not rely upon error at the bench trial to obtain reversal of his conviction; his only recourse is a trial de novo.

Respondent Michael Lydon was arrested after breaking into an automobile in Boston. He was charged with the knowing possession of implements "adapted and designed for forcing and breaking open a depository [an automobile] in order to steal therefrom, such money or other property as might be found therein" with intent "to use and employ them therefor." Record, Complaint. Lydon elected to undergo a first-tier bench trial and was convicted. The trial judge rejected Lydon's claim that the prosecution had introduced no evidence that Lydon intended to steal from the car and that his actions were as consistent with activities not covered by the complaint. Lydon was sentenced to two years in jail.

Lydon requested a trial de novo in the jury session of the Boston Municipal Court. Pending retrial, he was released

[ 466 U.S. Page 298]

     on personal recognizance. Before the jury trial commenced, Lydon moved to dismiss the charge against him on the ground that no evidence of the element of intent had been presented at the bench trial. He contended that retrial was therefore barred under the principles of Burks v. United States, 437 U.S. 1 (1978), which held that the Double Jeopardy Clause bars a second trial when a reviewing court reverses a conviction on the ground that the evidence presented at the first trial was legally insufficient.

After the motion to dismiss was denied, Lydon sought relief in the single justice session of the Supreme Judicial Court of Massachusetts. See Mass. Gen. Laws Ann., ch. 211, § 3 (West 1958). The single justice issued a stay of the de novo trial and reported two questions to the full bench:

"1. Is it a denial of a defendant's right not to be placed in double jeopardy to require him to go through a jury trial, requested by him without waiving his rights, when the evidence at the bench trial was insufficient to warrant a conviction?

"2. Assuming that a jury trial in such an instance would be a denial of a defendant's right not to be placed in double jeopardy, may the issue of the sufficiency of the evidence at the bench trial be considered again at the trial court level, assuming, of course, that the judge at the bench trial has denied an appropriate request for a ruling that the evidence at the bench trial was insufficient?"

The single justice did not report a finding on the sufficiency of the evidence, although he did state that he was "of the view that the evidence was not sufficient to warrant guilty findings." Record, Reservation and Report, at 3. He also noted that the prosecution conceded that the evidence presented was insufficient to warrant a finding of guilt on the charges set forth in the complaint. Ibid.

On review by the Supreme Judicial Court, the court initially noted that the single justice did not sit as a reviewing

[ 466 U.S. Page 299]

     court in determining the sufficiency of the evidence and that any conclusion reached by him on that issue "was made for the purpose of reporting clearly framed questions to the full bench and is not an adjudication of the rights of the parties in this case." Lydon v. Commonwealth, 381 Mass. 356, 359, n. 6, 409 N. E. 2d 745, 748, n. 6, cert. denied, 449 U.S. 1065 (1980). The Massachusetts court then found Lydon's double jeopardy argument to be without merit. Because no appellate court had ruled that the evidence was insufficient at Lydon's trial, and indeed no court ever would have occasion to do so under Massachusetts law, the court found Burks inapplicable. Burks, the court observed, did not address the question whether under double jeopardy principles a defendant convicted on insufficient evidence at a bench trial has a right to reconsideration of the sufficiency of the evidence prior to a trial de novo. The court concluded that "[a] defendant is not placed in double jeopardy merely because his only avenue of relief from a conviction based on insufficient evidence at a voluntarily sought bench trial is a trial de novo." 381 Mass., at 367, 409 N. E. 2d, at 752. As to the second reported question, the court concluded that if there is a valid double jeopardy claim, it should be dealt with prior to the trial de novo, although it acknowledged that its conclusion on this question was "rendered largely academic" by its answer to the first question since any double jeopardy claim presented to the second-tier court would necessarily be rejected. Id., at 366, 409 N. E. 2d, at 752.

Lydon then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. First addressing the question of its jurisdiction, the District Court held that Lydon was "in custody" for purposes of 28 U. S. C. § 2254(b) and that he had exhausted his state remedies because there was no state remedy available to him short of submitting to a second trial. 536 F.Supp. 647 (1982). On the merits, the District Court viewed Burks v. United States, supra, as "[bestowing] a constitutional right upon defendants not to be retried when the initial conviction

[ 466 U.S. Page 300]

     rests on insufficient evidence," 536 F.Supp., at 651, and thought that this holding foreclosed a second trial if the evidence against Lydon at the bench trial was insufficient, id., at 652. After reviewing the transcript of the bench trial, the District Court concluded that there was insufficient evidence of intent to support a conviction and ordered the writ to issue. On appeal, a divided Court of Appeals for the First Circuit affirmed in all respects. 698 F.2d 1 (1982).



We first address the Commonwealth's contention that the District Court lacked jurisdiction to entertain Lydon's habeas corpus action because he was not in "custody" for purposes of the statute and had not exhausted his state remedies. Under 28 U. S. C. § 2241(c), a "writ of habeas corpus shall not extend to a prisoner unless . . . (3) He is in custody in violation of the Constitution or laws or treaties of the United States." Similarly, 28 U. S. C. § 2254(a) states that a writ of habeas corpus is available to persons "in custody pursuant to the judgment of a State court." Petitioners argue that because Lydon's first conviction had been vacated when he applied for a trial de novo, and because he had been released on personal recognizance, he was not in "custody."

Our cases make clear that "the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody." Jones v. Cunningham, 371 U.S. 236, 239 (1963). In Hensley v. Municipal Court, 411 U.S. 345 (1973), we held that a petitioner enlarged on his own recognizance pending execution of sentence was in custody within the meaning of 28 U. S. C. §§ 2241(c)(3) and 2254(a). Hensley's release on personal recognizance was subject to the conditions that he would appear when ordered by the court, that he would waive extradition if he was apprehended outside the State, and that a court could revoke the order of release and require that he be returned to confinement or

[ 466 U.S. Page 301]

     post bail. Although the restraints on Lydon's freedom are not identical to those imposed on Hensley, we do not think that they are sufficiently different to require a different result.

The Massachusetts statute under which Lydon was released subjects him to "restraints not shared by the public generally." 411 U.S., at 351. He is under an obligation to appear for trial in the jury session on the scheduled day and also "at any subsequent time to which the case may be continued . . . and so from time to time until the final sentence." Mass. Gen. Laws Ann., ch. 278, § 18 (West 1981). Failure to appear "without sufficient excuse" constitutes a criminal offense. Ch. 276, § 82A. Also, if Lydon fails to appear in the jury session, he may be required, without a further trial, to serve the 2-year sentence originally imposed. Ch. 278, § 24. Finally, the statute requires that he "not depart without leave, and in the meantime . . . keep the peace and be of good behavior." Ch. 278, § 18. Consequently, we believe that the Court of Appeals correctly held that Lydon was in custody.

Petitioners contend that a conclusion that a person released on personal recognizance is in custody for purposes of the federal habeas corpus statutes will "[open] the door to the federal court to all persons prior to trial." Brief for Petitioners 24. We addressed the same argument in Hensley :

" Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing

[ 466 U.S. Page 302]

     in today's opinion alters the application of that doctrine to such a defendant." 411 U.S., at 353.*fn2


We are also convinced that Lydon had exhausted his state remedies with respect to his claim that his second trial would violate his right not to be twice placed in jeopardy unless it is judicially determined that the evidence at his first trial was sufficient to sustain his conviction.*fn3 This precise claim was presented to and rejected by the Supreme Judicial Court of Massachusetts. That court definitively ruled that Lydon had no right to a review of the sufficiency of the evidence at the first trial and that his trial de novo without such a determination would not violate the Double Jeopardy Clause. That Lydon may ultimately be acquitted at the trial de novo does not alter the fact that he has taken his claim that he should not be tried again as far as he can in the state courts.

We should keep in mind in this respect the unique nature of the double jeopardy right. In Abney v. United States, 431 U.S. 651 (1977), the Court held that denial of a motion to dismiss an indictment on double jeopardy grounds constitutes a

[ 466 U.S. Page 303]

     final order for purposes of 28 U. S. C. § 1291. That decision was based upon the special nature of the double jeopardy right and the recognition that the right cannot be fully vindicated on appeal following final judgment, since in part the Double Jeopardy Clause protects "against being twice put to trial for the same offense." Id., at 661 (emphasis in original). Because the Clause "protects interests wholly unrelated to the propriety of any subsequent conviction," ibid., a requirement that a defendant run the entire gamut of state procedures, including retrial, prior to consideration of his claim in federal court, would require him to sacrifice one of the protections of the Double Jeopardy Clause.*fn4

In our view, therefore, Lydon had exhausted his double jeopardy claim in the state courts, and that precondition to the District Court's jurisdiction was satisfied. We conclude below, however, that the District Court and the Court of Appeals erred in sustaining Lydon's double jeopardy claim: in our view, Lydon could be retried de novo without any judicial determination of the sufficiency of the evidence at his prior bench trial.*fn5

[ 466 U.S. Page 304]


In Ludwig v. Massachusetts, 427 U.S. 618 (1976), we upheld a prior Massachusetts two-tier system of trial courts for criminal cases. The present system differs from the system upheld in Ludwig in only one respect of significance here. Prior to the Massachusetts Court Reorganization Act of 1978, a defendant could not elect a jury trial in the first instance; he was required to participate in the first-tier proceedings. Under the present system, as noted above, a defendant may avoid the first-tier trial altogether and proceed directly to the jury trial. In upholding the prior Massachusetts system, we stated:

"The Massachusetts system presents no danger of prosecution after an accused has been pardoned; nor is there any doubt that acquittal at the first tier precludes reprosecution. Instead, the argument appears to be that because the appellant has been placed once in jeopardy and convicted, the State may not retry him when

[ 466 U.S. Page 305]

     he informs the trial court of his decision to 'appeal' and to secure a trial de novo.

"Appellant's argument is without substance. The decision to secure a new trial rests with the accused alone. A defendant who elects to be tried de novo in Massachusetts is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial. Under these circumstances, it long has been clear that the State may reprosecute. United States v. Ball, 163 U.S. 662 (1896). The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant in Massachusetts may obtain a 'reversal' and a new trial without assignment of error in the proceedings at his first trial. Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal." Id., at 631-632.

Our decision in Ludwig, which we think is dispositive of the double jeopardy issue in this case, was not disturbed by our later decision in Burks v. United States, 437 U.S. 1 (1978). In Burks, the petitioner's conviction had been set aside by the Court of Appeals on the ground that there had been insufficient evidence presented at his trial to support the verdict. The Court of Appeals then ordered the case remanded to the District Court for a determination of whether a new trial should be ordered or a directed verdict of acquittal should be entered. We reversed, stating:

"In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. . . .

"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial,

[ 466 U.S. Page 306]

     in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal -- no matter how erroneous its decision -- it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." Id., at 15-16. (footnote omitted) (emphasis in original).

We summarized our holding in Burks as being "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient." Id., at 18.

Lydon argues, and the Court of Appeals held, that our statement in Ludwig that a defendant who elects to be tried de novo is in the same position as a convicted defendant who successfully appeals, combined with our holding in Burks that the setting aside of a conviction on the basis of evidentiary insufficiency bars retrial, mandates the conclusion that a trial de novo is barred by the Double Jeopardy Clause if the evidence presented at the bench trial was insufficient to support a finding of guilt. We are unpersuaded.


The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." In Benton v. Maryland, 395 U.S. 784 (1969), we held that this guarantee is applicable to the States through the Fourteenth Amendment.

Our cases have recognized three separate guarantees embodied in the Double Jeopardy Clause: It protects against a second prosecution for the same offense after acquittal, against a second ...

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