                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

Briston v. Wholey
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3854




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"Briston v. Wholey" (2009). 2009 Decisions. Paper 1995.
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ALD-66                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-3854


                            DARRYLL LELAND BRISTON,
                                              Appellant

                                             v.

                           MATTHEW WHOLEY, ESQUIRE


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-08-cv-00935)
                      District Judge: Honorable Gary L. Lancaster


                   Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 24, 2008

              Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                             (Opinion filed: January 22, 2009)


                                        OPINION


PER CURIAM

       On November 2, 2004, Appellant Darryll Leland Briston was convicted in the

District Court for the Western District of Pennsylvania of deprivation of civil rights under

color of law, theft from an organization receiving federal funds, and two counts of
obstruction of justice. The conduct at the heart of the conviction involved Briston’s

unlawful seizure of roughly $5,800 found during the execution of an arrest warrant when

he was then chief of the Rankin, Pennsylvania Police Department. A few months after he

was convicted in federal court, Briston was charged in the Allegheny County Court of

Common Pleas with perjury for allegedly giving false testimony during a state

investigation into the same conduct that produced his federal conviction. Briston

unsuccessfully challenged the perjury charge in state court as a violation of

Pennsylvania’s double jeopardy statute, 18 Pa. Cons. Stat. § 111. After several

continuances, Briston’s state trial is currently set to begin on March 30, 2009. See

Commonwealth v. Briston, CP-02-CR-0005573-2005 (criminal docket pg. 1).

       On July 7, 2008, Briston filed a “Notice of Removal,” which the District Court

properly construed as a petition for habeas corpus under 28 U.S.C. § 2241(c)(3). Therein,

Briston alleged that the ongoing state prosecution violates his Fifth Amendment

protection from double jeopardy because it is based on the same conduct that resulted in

his federal conviction. The District Court found that Briston had not exhausted his

federal double jeopardy claim at the state level, and that he was unable to demonstrate the

“extraordinary circumstances” needed to circumvent non-exhaustion. See Moore v.

DeYoung, 515 F.2d 437, 443 (3d Cir. 1975). As such, the District Court found that the

habeas petition’s underlying claim was procedurally defaulted. We disagree.

       A habeas petitioner “need not have cited ‘book and verse’ of the federal



                                             2
constitution” in order to “fairly present” a federal claim at the state level for purposes of

exhaustion. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Indeed, he may

present the claim through any of the following mechanisms:

              (a) reliance on pertinent federal cases employing constitutional
              analysis, (b) reliance on state cases employing constitutional
              analysis in like fact situations, (c) assertion of the claim in terms
              so particular as to call to mind a specific right protected by the
              Constitution, and (d) allegation of a pattern of facts that is well
              within the mainstream of constitutional litigation.

Id. at 261-62 (quoting Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227,

1232 (3d Cir. 1992)). After reviewing both Briston’s “Rule 18 Pa. C.S.A. § 111 Motion

to Dismiss” before the Court of Common Pleas and his brief on appeal in the

Pennsylvania Superior Court, it is fair to say that Briston had asserted his double jeopardy

claim “in terms so particular as to call to mind” the Fifth Amendment’s proscription of

double jeopardy. Id. It follows, then, that he fully exhausted his federal double jeopardy

claim prior to filing his federal habeas petition.

       Nonetheless, the District Court correctly found that even if it were to entertain the

merits of Briston’s habeas petition, the “dual sovereignty doctrine” barred the relief he

sought. See Bartkus v. Illinois, 359 U.S. 121, 132-33 (1959) (separate federal and state

prosecutions for same conduct does not violate double jeopardy clause).

       There being no substantial question presented by Briston’s appeal from the

dismissal of his § 2241 habeas petition, we will summarily affirm the District Court’s

order dismissing the case. See LAR 27.4; I.O.P. 10.6.

                                               3
