Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 88-2489.
Stapleton, Hutchinson and Garth, Circuit Judges. Hutchinson, Circuit Judge, dissenting.
This appeal arises from the denial of a petition for a writ of habeas corpus by the district court for the District of New Jersey.,. The appellant, Charles A. Helton, was convicted in New Jersey state court after trial as an adult for felony-murder and related offenses. Helton was 16 years old at the time of the crimes. The juvenile court determined it could not waive jurisdiction over Helton to permit him to be tried as an adult. The New Jersey Supreme Court, however, ultimately reversed that decision, interpreting the state juvenile jurisdiction statute to permit such a waiver. After trial as an adult, Helton was sentenced to a term of imprisonment in excess of the maximum term that could have been imposed by the juvenile court.
The primary question on appeal is whether the New Jersey Supreme Court's construction of that state's juvenile jurisdiction statute constituted an unforeseeable statutory interpretation. If so, then its retroactive application to Helton would constitute an after-the-fact increase in criminal penalties in violation of the due process clause of the Fourteenth Amendment. For the reasons that follow, we believe that the New Jersey Supreme Court's reinterpretation of the standards governing juvenile court jurisdiction may not be applied retroactively to remove defenses from, or increase the penalty imposed on, a criminal defendant. We will therefore reverse the district court's denial of habeas corpus relief.
Helton was convicted in the Superior Court of New Jersey for felony-murder and other offenses committed on May 3, 1979. At that time, Helton was 16 years and 10 months old. The facts of the crimes, as established at Helton's trial, are essentially undisputed. Briefly stated, these facts are as follows. Helton and his two co-defendants, Bruce Risley and Edward Margie*fn1 went on a crime spree on the evening of May 3, 1979. During the course of that evening, the three defendants procured a gun and ammunition, and stole an automobile which they used for transportation. They then went to a convenience store, where Margie committed the first robbery. The three then proceeded to a second convenience store, where Risley entered to commit a second robbery, while Helton and Margie waited in the car. Armed with Helton's loaded revolver, Risley confronted the store clerk, Neal Conklin, and shot him at short range when Conklin appeared to be resisting the robbery attempt. Risley then took the money from the cash register, left Conklin lying dead, and ran back to Margie and Helton, who were waiting in the car. All three left the scene, with Helton driving, and later set the stolen car on fire.
Although he stands convicted of felony murder, other than the weapon used by Risley Helton's only connection to the apparently unpremeditated killing of Conklin was that he drove the getaway car from the robbery. See Dist. Ct. Op., App. at 9a.*fn2 Helton and his companions were apprehended about fourteen months after the date of the crimes. Juvenile complaints were filed against Helton charging offenses which would constitute the adult crimes of automobile theft, receiving stolen property, arson, armed robbery, and felony murder.
At a hearing before New Jersey's Juvenile and Domestic Relations Court, the state sought to have Helton tried as an adult. The then-applicable juvenile jurisdiction waiver statute, N.J.S.A. 2A:4-48 (repealed 1983), provided that:
The juvenile and domestic relations court may, without the consent of the juvenile, waive jurisdiction over a case and refer that case to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing that:
a. The juvenile was 14 years of age or older at the time of the charged delinquent act;
b. There is probable cause to believe that the juvenile committed a delinquent act which would constitute homicide . . . and
c. The court is satisfied that adequate protection of the public requires waiver and is satisfied there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority by use of the procedures, services, and facilities available to the court.
Quoted in State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93, 96 (1982) (emphasis added).*fn3 The juvenile court concluded that juvenile jurisdiction could not be waived because Helton was a good candidate for rehabilitation prior to the age of majority. The Superior Court Appellate Division ultimately affirmed, after remanding to the juvenile court for a written clarification of the findings of fact and the law that supported its previous ruling.
The state then moved for leave to appeal before the New Jersey Supreme Court. Leave to appeal was granted and the New Jersey Supreme Court summarily reversed the Appellate Division's decision. Upon Helton's motion for reconsideration, the court allowed oral argument and issued a full written opinion. See State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93 (1982). In that opinion, the state supreme court did not disturb the juvenile court's finding that Helton was a good candidate for rehabilitation. Rather, it held that the explicit statutory requirement that a defendant be treated as a juvenile if there were substantial prospects for rehabilitation during minority was not absolute, but had to be balanced against society's need for deterrence. The court also held that the need for "general deterrence" (i.e. deterrence of others from committing similar crimes, not just deterrence of the individual defendant from recidivism) is a component of the "adequate protection of the public" criterion found in the statute. Applying these standards to Helton, the New Jersey Supreme Court remanded to the juvenile court for entry of an order waiving juvenile court jurisdiction over Helton so that he could be tried as an adult. See 446 A.2d at 104.
On June 18, 1982, the Middlesex County Grand Jury returned an indictment charging Helton with various crimes that corresponded to the events put in issue by the juvenile complaints. After trial by a jury as an adult, and conviction,*fn4 Helton was sentenced on December 15, 1985 to a total term of imprisonment of life plus 12 to 18 years. This exceeds the maximum sentence that could have been imposed by the juvenile court. Under the juvenile court's jurisdiction, the maximum sentence Helton could have received would have been an indeterminate sentence, to continue until parole. See former N.J.S.A. 2A:4-61(h) (repealed 1983).*fn5
Helton's petition to the New Jersey Supreme Court for certification was denied. He then moved for postconviction relief in the Superior Court of New Jersey, which was denied on January 5, 1987. In its opinion denying postconviction relief, the court stated that the "consideration given to general deterrence in trying Charles Helton as an adult was appropriate and not a violation of the ex post facto principle." Supp. App. at 29. The Appellate Division affirmed, on the merits of the ex post facto issue, not on the basis of any alleged procedural bar.*fn6 See Supp. App. at 259. Helton appealed to the New Jersey Supreme Court, which granted the state's motion to dismiss the appeal.
Having exhausted his state remedies,*fn7 Helton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the District of New Jersey. On June 21, 1989, the district court denied the petition.
The federal district court had jurisdiction of Helton's habeas corpus petition pursuant to 28 U.S.C. § 2254. Although the district court judge, on July 27, 1989, denied Helton a certificate of probable cause, see 28 U.S.C. § 2253, we certified probable cause to appeal on June 26, 1990. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
Helton's appeal presents questions of constitutional law reviewable under a plenary standard. See Dent v. Cunningham, 786 F.2d 173, 175 (3rd Cir. 1986). We are bound by a state supreme court's construction of a state penal statute. Missouri v. Hunter, 459 U.S. 359, 368, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983). We are not, however, bound by the state court's determination as to whether its construction offends the federal Constitution. Id.
The issue to be resolved in this case is fairly narrow. Three principles that are relevant to the outcome are essentially uncontested, however, and will be addressed initially. First of all, there is no dispute that the state supreme court has final authority to interpret state statutes. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983); Dist. Ct. Op., App. at 12a.
Secondly, as earlier noted, N.J.S.A. 2A:4-48 (repealed 1983) provided conjunctively that in order to waive jurisdiction, the juvenile court must be "satisfied that adequate protection of the public requires waiver and [that] there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority." (Emphasis added.) There is no dispute that the New Jersey Supreme Court held, in apparent contradiction to the statutory language, that Helton could be tried in adult court "regardless of his rehabilitative prospects" (as the district court characterized it). Dist. Ct. Op., App. at 16a. The New Jersey Supreme Court's language was that
even if the juvenile court finds that there are reasonable prospects for rehabilitation, the court must then determine whether the prospects for rehabilitation overcome the public's need for deterrence in the given case.
State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 446 A.2d 93, 100 (1982). Thus, the New Jersey Supreme Court construed the word "and," in N.J.S.A. 2A:4-48, to mean "or." Despite the statute's conjunctive phrasing, the court apparently read the statute disjunctively, holding that the two legislatively established criteria, rehabilitation and deterrence, required only the application of a balancing test.
Thirdly, there is no dispute that if a judicial construction of a criminal statute is unexpected, and thus does not give fair warning, then for a state court to apply such an unforeseeable standard to the defendant in the case in which the new standard is announced would violate the due process clause. Thus, in Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964), the Supreme Court held that
an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10 of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.
378 U.S. at 353-54. See also Marks v. United States, 430 U.S. 188, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977) (reiterating the Bouie principle).
Bouie and Marks were concerned with the ex post facto construction of substantive criminal statutes. Ensuing decisions in the courts of appeals, however, established that the Bouie principle applies equally to after-the-fact increases in the degree of punishment. See Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989) ("We hold that the constitutional due process protections, like ex post facto protections, do extend to proscribe judicially enforced changes in interpretations of the law that unforeseeably expand the punishment accompanying a conviction beyond that which an actor could have anticipated at the time of committing a criminal act."), cert. denied, 494 U.S. 1058, 110 S. Ct. 1528, 108 L. Ed. 2d 767 (1990); Devine v. New Mexico Dep't of Corrections, 866 F.2d 339 (10th Cir. 1989). The United States Supreme Court, moreover, has now reaffirmed that the ex post facto prohibition applies equally to increases in punishment for conduct that was already criminal. See Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990).
Of course, not every retroactive change in the law amounts to a constitutional violation. In its recent analysis of the ex post facto principle in Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990), the Supreme Court adopted the analysis found in Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68 cc(1925), which established three tests for determining violations of the Ex Post Facto Clause. Under Beazell, a law is unconstitutional if it: (1) punishes as a crime an act that was innocent when done, or (2) makes more burdensome the punishment for ...