Thigpen v. Roberts, 468 U.S. 27 (1984)

Author: Justice White

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Thigpen v. Roberts, 468 U.S. 27 (1984)

JUSTICE WHITE delivered the opinion of the Court.

On August 6, 1977, respondent Barry Joe Roberts lost control of his car and collided with a pickup truck, killing a passenger in the truck. Shortly after the accident, Roberts received citations for reckless driving, driving while his license was revoked, driving on the wrong side of the road, and driving while intoxicated. He was convicted of these four misdemeanors in a Justice of the Peace Court in Tallahatchie County, Miss.{1} Roberts gave notice of appeal and the case was transferred to the Circuit Court for trial de novo.{2}

While the appeal was pending, in December, 1977, a grand jury indicted Roberts for manslaughter based on the August 6 accident. App. 90-91. Roberts was arraigned on the appeal and the felony indictment simultaneously, and the five charges were set for trial together. Id. at 92-93. During the trial, the State elected not to press the misdemeanor charges, and remanded them to the file.{3} The jury convicted Roberts of manslaughter, and the judge sentenced him to 20 years in prison. The Mississippi Supreme Court affirmed. Roberts v. State, 379 So.2d 514 (1979). It also refused Roberts leave to pursue state postconviction remedies.

Roberts then brought the present habeas corpus action in the United States District Court for the Northern District of Mississippi. The petition was referred to a Magistrate, who recommended that the writ issue for two reasons. First, the manslaughter prosecution violated the Double Jeopardy Clause because proof of manslaughter required proof of all the elements of reckless driving, of which Roberts had already been convicted. See Illinois v. Vitale, 447 U.S. 410 (1980). Second, substitution of a felony charge covering the conduct for which Roberts had already been convicted of four misdemeanors violated the Due Process Clause. See Blackledge v. Perry, 417 U.S. 21 (1974). The District Court adopted the Magistrate’s report. The Court of Appeals for the Fifth Circuit affirmed, relying solely on the double jeopardy argument, judgment order reported at 693 F.2d 132 (1982).

We granted certiorari, 461 U.S. 956 (1983), and we now affirm. Although the court below and the petition for certiorari addressed only the double jeopardy issue, we may affirm on any ground that the law and the record permit and that will not expand the relief granted below. United States v. New York Telephone Co., 434 U.S. 159, 166, n. 8 (1977). Because this case is plainly controlled by Blackledge v. Perry, supra, we affirm on the basis of that decision without reaching the double jeopardy issue.

Perry was convicted of assault in a court of limited jurisdiction under a scheme essentially identical to Mississippi’s. He exercised his statutory right to a trial de novo, and the prosecutor then obtained a felony indictment charging him with assault with a deadly weapon. We concluded that this sequence of events suggested "a realistic likelihood of `vindictiveness.’" 417 U.S. at 27. Fearing that the prosecutor, who "has a considerable stake in discouraging convicted misdemeanants from appealing, and thus obtaining a trial de novo," would make retaliatory use of his power to "up the ante," we considered the situation analogous to the imposition of a stiffer sentence after reversal and reconviction. See North Carolina v. Pearce, 395 U.S. 711 (1969). We therefore established a presumption of unconstitutional vindictiveness in these circumstances. Blackledge, supra, at 27-28.

Blackledge clearly controls this case.{4} The relevant facts are identical. Like Perry, Roberts was convicted of a misdemeanor and exercised his right to a trial de novo, only to be confronted with a felony charge. That charge covered the same conduct as the misdemeanors he sought to appeal. As the Magistrate concluded, "[t]he facts of this case fall squarely within Blackledge." App. to Pet. for Cert. A4.

The only possible distinction between the two cases is that, in Blackledge, the same attorney was apparently responsible for the entire prosecution. Here the proceedings before the Justice of the Peace were the responsibility of the county prosecutor, whereas the felony indictment was obtained by the District Attorney, who was then involved in the manslaughter trial. It might be argued that, if two different prosecutors are involved, a presumption of vindictiveness, which arises in part from assumptions about the individual’s personal stake in the proceedings, is inappropriate. Cf. Colten v. Kentucky, 407 U.S. 104 (1972) (refusing to apply prophylactic rule of Pearce where enhanced sentence is imposed by a different court after trial de novo). On the other hand, to the extent the presumption reflects

institutional pressure that . . . might . . . subconsciously motivate a vindictive prosecutorial . . . response to a defendant’s exercise of his right to obtain a retrial of a decided question,

United States v. Goodwin, 457 U.S. 368, 377 (1982), it does not hinge on the continued involvement of a particular individual. A district attorney burdened with the retrial of an already-convicted defendant might be no less vindictive because he did not bring the initial prosecution. Indeed, Blackledge referred frequently to actions by "the State," rather than "the prosecutor." E.g., 417 U.S. at 28-29.

We need not determine the correct rule when two independent prosecutors are involved, however. Here the county prosecutor participated fully after the conclusion of proceedings in the Justice of the Peace Court. He was the State’s sole representative at the arraignment in Circuit Court, App. 92, assisted at the trial, id. at 94; Tr. of Oral Arg. 9, and presented the initial closing argument to the jury, App. 96. In fact, such participation was a statutory duty. Under the state law then in effect, the county prosecutor was to "assist the district attorney in all criminal cases in the circuit court" in which his county had an interest and "to represent the state in all matters coming before the grand jury of his county." Miss.Code Ann. § 19-23-11 (1972). In these circumstances, the addition of the District Attorney to the prosecutorial team changes little.{5}

Petitioners suggest that we should remand the Blackledge issue to the Court of Appeals, rather than reach it ourselves. Tr. of Oral Arg. 24. It is true that

[w]hen attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court.

Dandridge v. Williams, 397 U.S. 471, 476, n. 6 (1970). Nonetheless, we have little hesitation in deciding the case in its current posture. The due process issue was argued before both the District Court and the Court of Appeals. The State’s opposition to the Magistrate’s report and its brief to the Court of Appeals are before us. The factual record is adequate, and would not be improved by a remand to the Court of Appeals.{6} And the case is decided by a straightforward application of controlling precedent.

The prosecution of Roberts for manslaughter, following his invocation of his statutory right to appeal his misdemeanor convictions, was unconstitutional. The resulting conviction cannot stand. The judgment of the Court of Appeals is therefore


1. Roberts was fined $100 for reckless driving, fined $100 and sentenced to 6 months in jail for driving while his license was revoked, fined $100 and sentenced to 10 days in jail for driving on the wrong side of the road, and fined $1,000 and sentenced to 11 months in jail for driving under the influence.

2. Under the Mississippi scheme then in effect, Justice of the Peace Courts had concurrent jurisdiction with the County Courts over misdemeanors. Miss.Code Ann. §§ 9-9-21, 99-33-1 (1972). In practice, misdemeanors were always brought in one or the other of these courts by county prosecutors. Brief for Petitioners 5, n. 1; Tr. of Oral Arg. 7-10. Such proceedings were initiated by affidavit, the traffic citations serving that function in the present case. If convicted in the Justice of the Peace Court, the defendant had an absolute right to appeal to the Circuit Court for a trial de novo. § 99-35-1.

3. Under Mississippi practice, a remand to the file "is the functional equivalent of a nolle pros." Tr. of Oral Arg. 15.

4. At oral argument, the State suggested that Blackledge had been overruled, or at least modified, by United States v. Goodwin, 457 U.S. 368 (1982). Tr. of Oral Arg. 24. Goodwin held that the Blackledge presumption does not apply when charges are enhanced following a pretrial demand for a jury trial. We distinguished Blackledge on the basis of the critical differences in the timing of the heightened charge and in the amount of extra effort to which the defendant has put the State. There is no hint in Goodwin that Blackledge does not apply with full force in the circumstances of that case, circumstances that are repeated here.

5. In both courts below, the State attempted to distinguish Blackledge on the ground that the misdemeanor and felony at issue in that case shared specific elements in a way that traffic violations and manslaughter do not. This argument closely resembled their double jeopardy argument, both focusing on the rule set out in Blockburger v. United States, 284 U.S. 299 (1932). Even if the State is correct that the offenses charged in Blackledge had more in common than those charged here, this parsing of the statutes misses the point. Blackledge engaged in no such analysis. It noted merely that the "indictment covered the same conduct for which Perry had been tried and convicted." 417 U.S. at 23. That is equally true here. Whatever the congruence, or lack thereof, of the offenses charged, the postappeal felony indictment poses "the danger that the State might be retaliating against the accused for lawfully attacking his conviction." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

6. In this regard, we note that the Blackledge presumption is rebuttable. See United States v. Goodwin, supra, at 376, n. 8; Blackledge, 417 U.S. at 29, n. 7. The State had ample opportunity below to attempt to rebut it, but did not do so. Its only argument has been that Blackledge should not apply.


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Chicago: White, "White, J., Lead Opinion," Thigpen v. Roberts, 468 U.S. 27 (1984) in 468 U.S. 27 468 U.S. 29–468 U.S. 33. Original Sources, accessed January 26, 2023,

MLA: White. "White, J., Lead Opinion." Thigpen v. Roberts, 468 U.S. 27 (1984), in 468 U.S. 27, pp. 468 U.S. 29–468 U.S. 33. Original Sources. 26 Jan. 2023.

Harvard: White, 'White, J., Lead Opinion' in Thigpen v. Roberts, 468 U.S. 27 (1984). cited in 1984, 468 U.S. 27, pp.468 U.S. 29–468 U.S. 33. Original Sources, retrieved 26 January 2023, from