468 U.S.

27
104 S.Ct. 2916
82 L.Ed.2d 23

Morris THIGPEN, Commissioner, Mississippi Department of

Corrections, et al., Petitioner
v.
Barry Joe ROBERTS.
No. 82-1330.

Supreme Court of the United States

Argued April 23, 1984.
Decided June 27, 1984.

Syllabus
Following an accident in which he lost control of his car and collided with
a pickup truck, killing a passenger in the truck, respondent was charged
with four misdemeanorsreckless driving, driving while his license was
revoked, driving on the wrong side of the road, and driving while
intoxicated. Upon being convicted of these charges in a Mississippi
Justice of the Peace Court, he appealed, and the case was transferred to
the Circuit Court for a trial de novo. While the appeal was pending, he
was indicted for manslaughter based on the same accident, and was
convicted. The Mississippi Supreme Court affirmed, refusing respondent
leave to pursue state postconviction remedies. Respondent then brought a
habeas corpus action in Federal District Court, which adopted a
Magistrate's report holding that the manslaughter prosecution violated the
Double Jeopardy Clause and that substitution of a felony charge covering
the conduct for which respondent had been convicted of the
misdemeanors violated the Due Process Clause. The Court of Appeals
affirmed, relying solely on the double jeopardy ground.
Held:
1. The prosecution of respondent for manslaughter, following his
invocation of his statutory right to appeal his misdemeanor convictions,
was unconstitutional as a violation of due process. Blackledge v. Perry,

417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. The fact that the proceedings
before the Justice of the Peace were the county prosecutor's responsibility,
whereas the felony indictment was obtained by the District Attorney, who
was then involved in the manslaughter trial, may not make inappropriate
the presumption of unconstitutional vindictiveness arising from obtaining
that indictment. That presumption does not hinge on the continued
involvement of a particular individual. In any event, here the county
prosecutor was the State's sole representative at the arraignment on the
felony indictment and, as required by statute, assisted at the manslaughter
trial. Pp. 30-32.
2. Although the Court of Appeals and the petition for certiorari addressed
only the double jeopardy issue, this Court, without deciding that issue,
will decide the due process issue and not remand it to the Court of
Appeals, where it was argued in both courts below, the State's opposition
to the Magistrate's report and its brief to the Court of Appeals are before
this Court, and the factual record is adequate. Pp. 32-33.
693 F.2d 132 (5th Cir.1982), affirmed.
William S. Boyd, III, Brandon, Miss., for petitioners.
Rhesa H. Barksdale, Jackson, Miss., as amicus curiae in support of the
judgment below by special order of the Court.
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 post-conviction
remedies.
3

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, 100 S.Ct. 2260, 65 L.Ed.2d 228 (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, 94 S.Ct. 2098, 40 L.Ed.2d 628 (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, 103 S.Ct. 2427, 77 L.Ed.2d 1315 (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, 98 S.Ct.
364, 369 n. 8, 54 L.Ed.2d 376 (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, 94 S.Ct.,
at 2102. 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 to 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, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969). We therefore established a presumption of
unconstitutional vindictiveness in these circumstances. Blackledge, supra, 417
U.S., at 27-28, 94 S.Ct., at 2102-2103.

Blackledge clearly controls this case. 4 The relevant facts are identical. Like
Perry, Roberts was convicted of a misdemeanor or 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.
7

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, 92
S.Ct. 1953, 32 L.Ed.2d 584 (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, 102 S.Ct. 2485, 2491,
73 L.Ed.2d 74 (1982), it does not hinge on the continued involvement of a
particular individual. A district attorney burdened with the retrial of an alreadyconvicted 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, 94 S.Ct., at 21022103.

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, 90 S.Ct. 1153,
1157, n. 6, 25 L.Ed.2d 491 (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.
10

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

11

Affirmed.

12

Justice REHNQUIST, dissenting.

13

The Court granted certiorari in this case to review a single question presented
by the petition for certiorari: whether the Court of Appeals properly applied our
decision in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228
(1980), in sustaining respondent's claim of double jeopardy under the Fifth and
Fourteenth Amendments to the United States Constitution. The Court of
Appeals held that the Clause was a bar to further prosecution on a charge of
manslaughter stemming from the death of a 10-year-old child who had been a
passenger in the truck involved in a collision with respondent's car. This Court,
however, in an unexampled bit of procedural footwork which surely has
adverse implications for the "rule of four" principle governing our grants of
certiorari, simply refuses to even consider the double jeopardy issue raised by
the State in its petition for certiorari. Without any explanation whatever, the
Court affirms the judgment of the Court of Appeals on an alternative ground.

14

The only precedent cited for this unexplainedand I dare say unexplainable
decision is United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct.
364, 54 L.Ed.2d 376 (1977). But that case stands only for the unexceptionable
proposition that a respondent may argue to this Court any basis supported by
the record for affirming the judgment of the lower court, even though
respondent did not cross-petition for certiorari. Nevertheless, in New York
Telephone Co. the Court decided the issue presented in the petition for
certiorari in addition to ruling on the alternative basis for affirmance urged by

the respondent. See id., at 174-178, 98 S.Ct., at 373-375. See also Dandridge v.
Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).1 I believe that
the Court is obligated to confront the State's contention that the Court of
Appeals misapplied the Double Jeopardy Clause of the Fifth Amendment in
this case. The Court being unwilling to undertake that obligation, I turn to it in
dissent.
15

Respondent was tried and convicted of the misdemeanor offense of reckless

driving in a Justice Court in Tallahatchie County, Miss., a county in
northwestern Mississippi with a population of approximately 17,000 people. He
was sentenced to pay a fine of $100 for this offense. As permitted by the
Mississippi "two-tier" system, he appealed his conviction to the State Circuit
Court where he was entitled to a trial de novo. But before he was retried on the
misdemeanor charge in the Circuit Court, he was indicted for the felony offense
of manslaughter for causing the death of the 10-year-old child who was riding
in the truck that respondent struck with his car. The misdemeanor offense was
"nolle prossed" before trial, but respondent was convicted by a jury of
manslaughter and sentenced to 20 years in the custody of the Mississippi
Department of Corrections.

16

Respondent's conviction was affirmed by the Mississippi Supreme Court.

Roberts v. State, 379 So.2d 514 (1979). After exhausting his state
postconviction remedies, respondent filed a petition for federal habeas corpus
relief. This writ was granted by the District Court, and the Court of Appeals for
the Fifth Circuit affirmed that determination. The Court of Appeals held that
"because Roberts has a substantial double jeopardy claim under the Supreme
Court's holding in Illinois v. Vitale, the district court's granting of habeas
corpus relief must be affirmed." App. to Pet. for Cert. A13.

17

In reaching this conclusion, I believe that the Court of Appeals mistakenly

relied upon a mere form of expression in the Court's opinion in Illinois v. Vitale
to depart from all of our previous double jeopardy holdings in this area. The
Court of Appeals apparently felt that the Vitale opinion changed governing
double jeopardy law to permit a defendant to establish a substantial, and
apparently dispositive, claim of double jeopardy merely by showing that the
State actually relied upon the same evidence to prove both crimes. While there
is one sentence in the Court's opinion in Vitale that supports this construction, I
do not believe that construction is consistent with the opinion as a whole. Until
the present case, the relevant question to be answered by any court is whether
the evidence required to prove the statutory elements of crime is the same, not
whether the evidence actually used at trial is the same.

18

In Vitale the Supreme Court of Illinois had held that the Double Jeopardy
Clause of the Fifth Amendment barred the prosecution of a defendant for
manslaughter because the defendant had previously pleaded guilty to a charge
of failing to reduce speed arising out of the same incident. This Court vacated
the judgment of the Supreme Court of Illinois, saying:

19

"The point is that if manslaughter by automobile does not always entail proof of
a failure to slow, then the two offenses are not the 'same' under the Blockburger
test. The mere possibility that the State will seek to rely on all of the ingredients
necessarily included in the traffic offense to establish an element of its
manslaughter case would not be sufficient to bar the latter prosecution." 447
U.S., at 419, 100 S.Ct., at 2266-2267.

20

It seems to me that this is about as clear a statement as there can be of the

principle that the double jeopardy inquiry turns on the statutory elements of the
two offenses in question, and not on the actual evidence that may be used by
the State to convict in a particular case. Nonetheless, the Court went on in
Vitale to distinguish Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53
L.Ed.2d 1054 (1977), and in so doing stated:

21

"By analogy, if in the pending manslaughter prosecution Illinois relies on and

proves a failure to slow to avoid an accident as the reckless act necessary to
prove manslaughter, Vitale would have a substantial claim of double jeopardy
under the Fifth and Fourteenth Amendments of the United States Constitution."
447 U.S., at 421, 100 S.Ct., at 2267.

22

I cannot say that this last expression did not afford the Court of Appeals some
ground for the views which it expressed, nor can I say that I think it is entirely
consistent with the first quotation from the Vitale opinion. But I am reasonably
sure that the Court did not intend to transmute the traditional double jeopardy
analysis from an either "up or down" inquiry based on the evidence required to
prove the statutory elements of a crime into a "substantial claim" inquiry based
on the evidence the State introduced at trial. I think that there are ambiguities in
Illinois v. Vitale which urgently need resolution by this Court, that the present
case affords an ample opportunity to do this, and that the Court's failure to do it
is an unexampled abdication of its responsibility.

23

I would unambiguously reaffirm the statement in Brown v. Ohio, 432 U.S. 161,
97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), relied upon in Illinois v. Vitale, supra,
that " '[t]he applicable rule is that where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.' " 432 U.S., at 166,
97 S.Ct., at 2225, quoting Blockburger v. United States, 284 U.S. 299, 304, 52
S.Ct. 180, 182, 76 L.Ed. 306 (1932).
24

Applying that principle to this case, it seems to me that the Court of Appeals
was demonstrably wrong in its treatment of the double jeopardy issue.
Comparing the elements of the Mississippi reckless driving statute with the
Mississippi manslaughter statute, that court said:

25

"A narrow focus on the two statutes provides one answer. Proof of
manslaughter does not necessarily entail proof of reckless driving, for
manslaughter could be proved in a situation completely foreign to a vehicular
collision." App. to Pet. for Cert. A10-A11

26

But the court went on to say that taking into account a "judicial veneer" which
had been placed on the statute by the Supreme Court of Mississippi, "it is
apparent that manslaughter by automobile cannot be proven without at the
same time proving reckless driving. Because the specific felony offense,
manslaughter by automobile, is not statutorily defined, this Court is confronted
with a novel situation. Depending on whether the focus is on the manslaughter
statute alone or on its case law veneer as well, application of the first prong of
the Vitale analysis gives different results." Id., at A11.

27

But the Court of Appeals declined to resolve the inquiry based on the elements
of the two statutes, as mandated by Brown, supra, and went on to say that there
was a "second prong" of the inquiry based upon the evidence actually presented
at trial. Because the same evidence that led to respondent's conviction on the
misdemeanor charge was also introduced in the manslaughter trial, respondent
was said to have a "substantial claim" of double jeopardy, whatever that phrase
may mean. Because respondent had such a "substantial claim," the Court of
Appeals set aside a state-court conviction.

28

I believe that a straightforward analysis of the holding in Brown v. Ohio

requires the conclusion that there was a different element in each of the
offenses involved which need not be proved with respect to the other offense.
The offense of reckless driving is based on the manner of operation of a motor
vehicle upon the public roads, and in no wise requires any result in injury to
persons or property. The crime of manslaughter by culpable negligence simply
requires the causing of a death with a particular state of mind, and need not in
any way involve an automobile.2

29

The fact that in this particular case the "same evidence" might be used to prove
the "reckless" element in the automotive offense and the "culpable negligence"
in the manslaughter offense is also not dispositive. For reckless driving a
defendant must have driven an automobile, which he need not do to be found
guilty of manslaughter; for manslaughter a defendant's act must have caused a
death, which is not required for the offense of reckless driving. Applying the
"Blockburger" test to a question of statutory construction, the Court in Iannelli
v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1294, n. 17, 43
L.Ed.2d 616 (1975), said:

30

"[T]he Court's application of the test focuses on the statutory elements of the
offense. If each requires proof of a fact that the other does not, the Blockburger
test is satisfied, notwithstanding a substantial overlap in the proof offered to
establish the crimes."

31

Since Vitale we have reaffirmed the Blockburger test that the evidence required
to prove the statutory elements of a crime determines whether particular crimes
are the same offense for double jeopardy purposes. See Missouri v. Hunter, 459
U.S. 359, 367-368, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). The actual
evidence test which the Court of Appeals inferred from the single sentence in
Vitale has never been applied to bar a second trial on grounds of double
jeopardy.

32

I would therefore reverse the judgment of the Court of Appeals insofar as it

upheld respondent's double jeopardy claim. Because the Court of Appeals did
not pass upon respondent's due process claim based upon our decision in
Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), I
would remand the case to that court so it may consider the question in the first
instance.

33

Justice O'CONNOR, with whom Justice POWELL joins, dissenting.

34

For the reasons stated in Justice REHNQUIST's dissent, I believe the Court
should address the double jeopardy question decided by the Court of Appeals. I
also agree with Justice REHNQUIST that the Court of Appeals' ruling should
be vacated and the case remanded for further consideration in light of
Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In my
view, however, the Court of Appeals' double jeopardy holding should be
vacated simply on the ground that jeopardy does not attach in the first tier of a
"two-tier" criminal trial.

35

Two-tier systems for adjudicating less serious criminal cases such as traffic
offenses are extremely common. Colten v. Kentucky, 407 U.S. 104, 112, n. 4,
92 S.Ct. 1953, 1958, n. 4, 32 L.Ed.2d 584 (1972). Indeed, this is our second
occasion this Term to review double jeopardy problems arising out of a two-tier
trial. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct.
1805, 80 L.Ed.2d 311 (1984). Mississippi's two-tier system is fairly typical. A
defendant convicted in a Mississippi justice of the peace court has an absolute
right to a trial de novo if he chooses to appeal his conviction. See Calhoun v.
City of Meridian, 355 F.2d 209, 211 (CA5 1966); Miss.Code Ann. 99-35-1 et
seq. (1972). In Mississippi, as in Kentucky, "a defendant can bypass the inferior
court simply by pleading guilty and erasing immediately thereafter any
consequence that would otherwise follow from tendering the plea." Colten v.
Kentucky, supra, 407 U.S., at 119-120, 92 S.Ct., at 1962.

36

In these circumstances a defendant is not in "jeopardy" of anything when he

undergoes a first-tier trial. The first-tier proceedings

37

"offer a defendant the opportunity to learn about the prosecution's case and, if
he chooses, he need not reveal his own. . . . In reality his choices are to accept
the decision of the judge and the sentence imposed in the inferior court or to
reject what in effect is no more than an offer in settlement of his case and seek
the judgment of judge or jury in the [second-tier trial,] with sentence to be
determined by the full record made in that court." 407 U.S., at 118-119, 92
S.Ct., at 1961.

38

Respondent Roberts chose not to accept the "offer in settlement" made at his
first-tier trial. On August 13, 1977, he was convicted in the first-tier trial and
sentenced to pay a fine of $100 on the charge of reckless driving. He filed
notice of and perfected an appeal on the same day. The reckless driving
misdemeanor charge was eventually consolidated for trial with the
manslaughter charge but was not prosecuted further. There is no indication that
Roberts ever paid the $100 fine. At oral argument counsel conceded that he
probably did not.

39

This is surely dispositive evidence that Roberts was never in "jeopardy" at his
first-tier trial. Though he was tried, convicted, and sentenced at that trial, he
effortlessly erased his conviction and suffered no punishment whatsoever for
the offense of reckless driving. If Roberts was never in jeopardy at his first-tier
trial, the second trial could in no circumstance violate Roberts' constitutional
right to avoid being placed twice in jeopardy for the same offense.

40

Accordingly, I would vacate the judgment below and remand for further
consideration in light of Blackledge v. Perry, supra.

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.

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.

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

At oral argument, the State suggested that Blackledge had been overruled, or at
least modified, by United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73
L.Ed.2d 74 (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.

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, 52 S.Ct. 180, 76
L.Ed. 306 (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, 94 S.Ct., at 2100. 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, 98 S.Ct. 663, 668, 54 L.Ed.2d 604
(1978).
6

In this regard, we note that the Blackledge presumption is rebuttable. See

United States v. Goodwin, supra, 457 U.S., at 376, n. 8, 102 S.Ct., at 2490, n.
8; Blackledge, 417 U.S., at 29, n. 7, 94 S.Ct., at 2103. 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.

Our decision in Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520
(1931), is not to the contrary. While in Langnes the Court never addressed the
errors specified by the petitioner in that case, the Court decided in Langnes that
the District Court should never have addressed the petitioner's claims in the
first instance. See id., at 540-542, 51 S.Ct., at 246-247; cf. Schlesinger v.
Councilman, 420 U.S. 738, 743-744, 95 S.Ct. 1300, 1305-1306, 43 L.Ed.2d 591
(1975). When a petitioner's claims should never have been presented to or
decided by a federal court in the first instance, a ruling by this Court on those
claims would be wholly inappropriate. There being no similar grounds upon
which to abstain from deciding any issue raised by this case, the Court should
address the question raised by the petitioner.

The case which the Court of Appeals suggested created a separate, nonstatutory
crime of manslaughter by automobile, Smith v. State, 197 Miss. 802, 20 So.2d
701 (1945), involved a charge of manslaughter under Miss.Code Ann. 2232
(1942), which read:
"Every other killing of a human being, by the act, procurement, or culpable
negligence of another, and without any authority of law, not provided for in this
chapter, shall be manslaughter."
This provision has remained unchanged since the Smith decision. See
Miss.Code Ann. 97-3-47 (1972).
That the Smith decision did not result in a new crime of manslaughter by
automobile should be clear from the following analysis of Smith in Dickerson
v. State, 441 So.2d 536 (Miss.1983):
"This statute [ 97-3-47] has been authoritatively construed in Smith v. State,
197 Miss. 802, 20 So.2d 701 (1945), a case involving alleged manslaughter
with an automobile, to require that, before the defendant may be convicted, the
state must prove that he 'was guilty of such gross negligence on the occasion
complained of as evince [sic] on his part a wanton and reckless disregard for

the safety of human life, or such an indifference to the consequences of his act
under the surrounding circumstances as to render his conduct tantamount to
willfulness.' " Id., at 538 (citing to Smith v. State, supra, 187 Miss., at 812, 20
So.2d, at 703).
At no point in Dickerson does the Mississippi Supreme Court suggest that the
crime of manslaughter involving use of an automobile is a different crime than
any other manslaughter charged under 97-3-47. In other instances involving
prosecutions under the manslaughter statute the State Supreme Court has
employed similar language, indicating the juxtaposition of the words
"manslaughter" and "motor vehicle" found in Smith was nothing more than an
effort to illuminate what the court meant by culpable negligence in those
circumstances. Cf. Latiker v. State, 278 So.2d 398, 399 (1973); Gregory v.
State 152 Miss. 133, 141-142, 118 So. 906, 909 (1928).