ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. No. 80-0505
Before Adams and Sloviter, Circuit Judges, and Brotman*fn* District judge.
This appeal, by a state prisoner charged with first degree murder, presents two primary issues. First, does a federal court have jurisdiction over a petition for habeas corpus based on a challenge to excessive bail or the refusal to set bail? Second, how should a federal court deal with a prisoner's habeas corpus petition when it is not clear whether the highest state court imposed excessive bail or refused bail completely?*fn1
Nine years ago, on October 22, 1971, Edward Sistrunk was convicted in the Court of Common Pleas of Philadelphia of first degree murder and eleven related offenses. The charges stemmed from a robbery by eight persons of Dubrow's Furniture Store. In the course of the robbery, one man was killed, five fires were ignited, and many persons were assaulted. Sistrunk received sentences of life imprisonment for murder, followed by consecutive and concurrent twenty to forty year sentences for the other crimes. On appeal, the Pennsylvania Supreme Court affirmed the judgment. Commonwealth v. Sistrunk, 460 Pa. 655, 334 A.2d 280 (1975).
Sistrunk then sought collateral relief pursuant to the Pennsylvania Post-Conviction Hearing Act.*fn2 On May 25, 1979 the Philadelphia Court of Common Pleas granted Sistrunk a new trial on the ground that his Sixth Amendment rights were abridged by prejudicial error in the prosecutor's closing argument and by ineffective assistance rendered by his counsel.
Following the award of a new trial, Sistrunk requested that bail be set pending his retrial. At the bail hearing, presided over by the same judge who had overturned the original convictions, Sistrunk stated that while awaiting retrial he intended to live with his mother in Philadelphia, that he had nine children who resided with his divorced wife in Philadelphia, and that the head of the Muslim Temple in Philadelphia had offered him a job. The court concluded that it
has had an opportunity to weight (sic) the gravity of the crime, the mitigating and aggravating circumstances which are inherent in the transcript which this Court has read and which is a very important factor upon the likelihood of conviction and possible penalty. The Court has taken into consideration that which has been adduced by the defendant with respect to his marital status, his background as to criminal conduct over a period of time which apparently was abated by his present incarceration, because there were a series of convictions during a sustained period of time.
Bail was then set at two million dollars.*fn3
Sistrunk next appealed the bail adjudication to the Pennsylvania Supreme Court, which denied the application for a bail reduction in a cryptic per curiam order that declared:
It is the conclusion of the Supreme Court that this is a case where bail should be denied. In view thereof this petition is denied.
Appellant then filed for habeas corpus relief in the district court.*fn4 He alleged that the $2 million bail (1) contravened his Eighth and Fourteenth Amendment rights to reasonable bail, (2) abridged the presumption of innocence accorded all unconvicted persons, and (3) violated a policy of equal treatment, insofar as a co-defendant convicted of the same charges and also awarded a new trial had been released on $300,000 bail. The district court, adopting the report and recommendation of a United States Magistrate, denied relief without a hearing on the merits. It concluded that the state trial judge had not abused his discretion in setting bail nor set an arbitrary or discriminatory bail in violation of the Fourteenth Amendment. Further, the district court reasoned that, because Sistrunk could be subject to the death penalty on retrial, bail could have been denied in any event. This appeal ensued.
Because we conclude that the excessive bail provision of the Eighth Amendment is applicable to the states pursuant to the due process clause of the Fourteenth Amendment, but find it plausible that the State Supreme Court intended not to impose a $2 million bail but to deny bail altogether, we affirm the order of the district ...