On petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
During the evening of August 2, 1974, petitioner Alfred Brooks and a male companion abducted two women at gunpoint. After robbing the women, the men took the victims into a field and shot them, wounding one and killing the other. Petitioner was thereafter charged, tried, and convicted in District Court, Oklahoma County, for the offense of murder in the first degree. He was sentenced to death. On appeal, the conviction was affirmed, but the sentence was modified to life imprisonment. Brooks v. State, 566 P.2d 147 (Okl.Cr.App.1977). The State later prosecuted petitioner for two additional offenses related to the events of August 2, 1974; assault and battery with a deadly weapon with intent to kill, and robbery with firearms. Petitioner pled guilty to both charges, and was sentenced to two concurrent twenty-year terms of imprisonment. Seeking post-conviction relief in the Oklahoma court, petitioner challenged the later convictions on double jeopardy grounds, inter alia. Following the denial of relief, which was affirmed on appeal, Brooks filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma. That court dismissed the petition, and the Court of Appeals for the Tenth Circuit affirmed.
Although all the charges leveled against petitioner arose out of the same criminal transaction or episode, they were prosecuted by the State in two separate proceedings. Accordingly, I would grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand for fur- [456 U.S. 999 , 1000] ther proceedings.* I adhere to my view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 ( 1969), requires that except in extremely limited circumstances not present here, "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction" be prosecuted in one proceeding. Ashe v. Swenson, 397 U.S. 436 , 453-454, 1199 (1970) (BRENNAN, J., concurring). See Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN, J., dissenting); Cousins v. Maryland, 429 U.S. 1027 (BRENNAN, J., dissenting); Dempsey v. United States, 423 U.S. 1079 (1976) (BRENNAN, J., dissenting); Susi v. Flowers, 423 U.S. 1006 (1975) (BRENNAN, J., dissenting); Vardas v. Texas, 423 U.S. 904 ( 1975) (BRENNAN, J., dissenting); Stewart v. Iowa, 423 U.S. 902 (1975) (BRENNAN, J., dissenting); Waugh v. Gray, 422 U.S. 1027 (1975) (BRENNAN, J., dissenting); Wells v. Missouri, 419 U.S. 1075 (1974) ( BRENNAN, J., dissenting); Moton v. Swenson, 417 U.S. 957 (1974) (BRENNAN, J., dissenting); Tijerina v. New Mexico, 417 U.S. 956 (1974) (BRENNAN, J., dissenting); Ciuzio v. United States, 416 U.S. 995 , 40 L. Ed.2d 774 (1974) (BRENNAN, J., dissenting); Harris v. Washington, 404 U.S. 55, 57 , 184 (1971) (concurring statement); Waller v. Florida, 397 U.S. 387, 395 , 1188 ( 1970) (BRENNAN, J., concurring). See also People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973); State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808 (1973), adhered to on remand, 455 Pa. 622, 314 A.2d 854 (1974); State v. Gregory, 66 N.J. 510, 333 A.2d 257 ( 1975).
[ Footnote * ] Because the Court of Appeals held "that the double jeopardy clause is not applicable in this case," it declined to consider petitioner's " contention that by pleading guilty he did not waive his right to claim dismissal by reason of double jeopardy." App. to Pet. for Cert. A-3. The case therefore should be remanded to permit the Court of Appeals to consider this contention.