FRANK A. KAUFMAN, District Judge.
Douglas, presently confined in the Maryland House of Correction, seeks habeas corpus relief in this Court for the third time after two previous unsuccessful quests.
Douglas was convicted on February 19, 1969 of common law robbery after a jury trial in the Criminal Court of Baltimore, Judge Solomon Liss presiding. On March 3, 1969, Judge Liss denied Douglas’ motion for a new trial and sentenced him to ten years’ imprisonment.
The Court of Special Appeals of Maryland affirmed Douglas’ conviction in an unreported per curiam opinion filed on March 9, 1970. Thereafter, the Court of Appeals of Maryland denied certiorari review on June 8, 1970. Douglas’ search for post-conviction relief under the Maryland Post Conviction Procedure Act was denied on December 7, 1973 by Judge Anselm Sodaro, sitting in the Criminal Court of Baltimore. Application for leave to appeal Judge Sodaro’s decision was also denied by the Court of Special Appeals of Maryland in an unreported per curiam opinion filed on January 10, 1974.
Douglas raises only one issue in this case.
That contention is that the State’s use, for credibility impeachment purposes in its cross-examination of Douglas during the robbery trial before
Judge Liss, of a prior criminal conviction of Douglas which would have been void if it had occurred after the decision in
Long v. Robinson,
316 F.Supp. 22 (D.Md.1970),
aff’d,
436 F.2d 1116 (4th Cir. 1971), deprived Douglas of due process of law. That contention was rejected by Judge Sodaro in Douglas’ post-conviction proceeding. That rejection was not disturbed in connection with Douglas’ unsuccessful quest for appellate review. Accordingly, Douglas has exhausted his state remedies with respect to the single issue he raises in this ease.
During the robbery trial before Judge Liss, Douglas was positively identified by two eyewitnesses as the man who had committed the robbery. There was no other evidence as to his guilt. Douglas took the stand in his own defense in an attempt to establish an alibi defense. On cross-examination the State elicited testimony from Douglas concerning his prior criminal record (T. Tr. 137-40). That record consisted of three offenses: (1) a conviction, within a year of the trial itself, for burglary;
(2) a conviction for burglary which occurred in 1959 when Douglas was sixteen years old; and (3) a larceny conviction for which Douglas was fined fifty dollars. The date of that third conviction is not clear.
When Douglas was asked about the conviction which took place when he was sixteen years old, he responded only by answering “juvenile” to questions about that conviction.
In
Long v. Robinson,
316 F.Supp. 22 (D.Md.1970), then Chief Judge R. Dorsey Watkins of this Court held unconstitutional the Maryland statutory provisions
which provided that a person sixteen or seventeen years of age had to be tried in the Criminal Court of Baltimore as an adult whereas a person of the same age could only be tried in the Circuit Courts of the counties if the Juvenile Court of the county involved waived jurisdiction to the adult criminal court. Judge Watkins held that a sixteen or seventeen year old person had the same right to insist upon a Juvenile Court waiver, before he could be tried as an adult in Baltimore City, as such a person had with respect to trial in one of Maryland’s counties.
Judge Watkins’ decision was affirmed by the Fourth Circuit in
Long v. Robinson,
436 F.2d 1116 (4th Cir. 1971), which,
inter alia,
held that there was not “a true retroactivity question” before it at that time. 436 F.2d
supra
at 1120. That retroactivity issue was subsequently considered in
Woodall v. Pettibone,
465 F.2d 49 (4th Cir. 1972),
cert. denied,
413 U.S. 922, 93 S.Ct. 3054, 37 L.Ed.2d 1044 (1973), decided on August 8, 1972.
In
Woodall,
Judge Craven wrote (at 50);
The question presented by this appeal is whether
Long v. Robinson,
436 F.2d 1116 (4th Cir. 1971), is to be given retroactive effect. We think that it should be applied retroactively but that practical considerations require case-by-case application and
prevent according general blanket relief automatically to all persons affected.
And (at 52):
We think the question of retroactivity is controlled by our decision in
Kemplen v. State of Maryland,
428 F.2d 169 (4th Cir. 1970). It is true, as the state contends, that the unconstitutional treatment of petitioners does not relate to the accuracy of the fact finding function of the judicial process. But as we said in
Kemplen,
the normal waiver proceeding is a critical point in the criminal proceedings against a juvenile. It is “the only opportunity an accused has to plead the defense of his diminished responsibility as a juvenile.”
Kemplen,
at 177. To deny juveniles in Baltimore the opportunity of such a defense and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the “adult” proceedings and render unreliable the guilty verdicts obtained in these proceedings. We hold, therefore, that
Long v. Robinson,
436 F.2d 1116 (4th Cir. 1971), is to be retroactively applied.
* * * * * -X-
In the briefs and at oral argument considerable stress was put by the state’s attorney on the enormity of the burden on the state if we required it to discover every conviction which resulted from trials in which defendants in Woodall’s position had been subjected to criminal sanctions and expunge them from the records. We impose no such burden on the state.
Expunction is an equitable remedy to be granted in the balancing of the interests of the defendants and the state, see
Wheeler v. Goodman,
D.C., 306,F.Supp. 58 (1969), and we think that the only fair way to determine whether expunction is required is on a case-by-case method when the issue is raised by one affected by such a conviction. Unlike the situation in which it is determined that certain conduct is constitutionally immune from criminal sanctions,
United States v. United States Coin and currency,
401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the conduct involved in convictions which
Long
voided was not so constitutionally protected.
See
p. 52 n. 7
supra
[quoted
infra
at p. 9]. We think a court of equity, in considering a petition to expunge, should consider,
inter alia,
whether or not waiver to the adult criminal courts would likely have been granted. Always, of course, the extent and nature of the burden of the unconstitutional conviction should be considered.
The diligent efforts of Woodall’s counsel aided by the state’s attorney have disclosed that there are 37 persons under sentence of imprisonment to regular penal institutions, nine institutionalized in and one paroled from Patuxent Institution, 74 on parole and 39 on probation
who will be affected by this decision, the identities of all of whom are known.
As to these 122 persons, we hold that they are entitled to retroactive application of the rationale of
Long.
In granting relief, the district court will be faced with the same procedural problem encountered in
Kemplen v. Maryland, supra.
For its guidance in further proceedings, we suggest that the application of Long to the convictions of these persons in the adult
criminal courts should be treated as establishing
prima facie
a right to have the convictions vacated and declared null and void, provided however, that the state should be afforded the opportunity, either in the Maryland courts or in the United States District Court to establish
nunc pro tunc
that the Maryland Juvenile Court Judge would have, because of the facts and circumstances, waived jurisdiction to an adult court. See opinion on petition for rehearing,
Kemplen,
428 F.2d at 178. Compare
Franklin v. State,
264 Md. 62, 285 A.2d 616 (1972). [All footnotes other than footnote 9 are omitted.]
In
Burgett v. Texas,
389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court held that a conviction obtained in violation of
Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),
i. e.,
a conviction obtained in a proceeding in which the defendant had not been afforded counsel, could not be considered valid as a prior conviction with relation to a subsequent prosecution involving a Texas statutory recidivist provision. “To permit a conviction obtained in violation of
Gideon v. Wainwright
to be used against a person either to support guilt or enhance punishment for another offense * * wrote Mr. Justice Douglas in
Burgett
(389 U.S. at 115, 88 S.Ct. at 262), “is to erode the principle of that case.”
Gideon
itself has been held fully retroactive.
See, e. g., Kitchens v. Smith,
401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971).
Burgett
was held fully retroactive in
Loper v. Beto,
405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), decided March 22, 1972, four and one-half months before
Woodall
was decided on August 8, 1972. In
Loper,
prior convictions seemingly invalid under
Gideon
had been used to impeach the credibility of the defendant. In his plurality opinion in
Loper,
Mr. Justice Stewart wrote (at 483, 92 S.Ct. at 1019):
Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under
Gideon v. Wainwright
to impeach a defendant’s credibility deprives him of due process of law.
* * *
Counsel in this case, one of whom participated as counsel in
Woodall,
have informed this Court that, as far as they can ascertain, the specific retroactivity issue raised herein was not expressly considered in
Woodall,
even though in
Woodall
Judge Craven explicitly focused upon the burden placed upon the State by
Woodall’s
limited retroactive application of
Long. Woodall
at no point holds in so many words that that retroactive application may not be extended to persons other than those who are serving sentences, or who are on probation or parole, as a result of convictions before
Long
which after
Long
would have been invalid. But
Woodall
itself limited relief to 122 persons who were so affected and who were, under
Woodall
(at 53), held presumptively entitled to have their “convictions vacated and declared null and void, provided however, that the state should be afforded the opportunity, either in the Maryland courts or in the United States District Court, to establish
nunc pro tunc
that the Maryland Juvenile Court Judge would have, because of the facts and circumstances, waived jurisdiction to an adult court.” Neither in a state Court nor in this Court has the State sought to establish that such waiver would have occurred in connection with Douglas’ trials as an adult when he was under the age of eighteen. Rather, the State contends herein that
Woodall’s
retroactive application of
Long
should not be extended so as to provide a basis for relief herein and that even if
Long’s
retroactive applica
tion is so extended herein the harmless error doctrine bars such relief for Douglas.
The State’s first such contention relates to the question of burden placed upon the State. It is clear, as Judge Harvey has so well explicated in
Lambert v. Maryland,
Civil No. H-74-404, decided March 7, 1975,
that it is constitutional error, pursuant to the combination of the doctrines of
Burgett, Loper
and
Long,
for a conviction which was entered after
Long
and which was invalid under
Long,
to be utilized to impeach the credibility of a defendant who takes the witness stand in his own defense. Since the effective date of
Long,
a Maryland prosecutor must bear the burden of checking to make certain that a prior conviction was obtained under circumstances when not only the defendant’s rights under
Gideon,
but also under
Long,
were fully respected, before that prosecutor may utilize such prior conviction.
But herein Douglas claims the right to have his conviction in his
1969
robbery trial, held before
Long
was decided, set aside upon the basis that his 1969 conviction was unconstitutionally obtained by the use, for impeachment purposes during such 1969 trial, of prior convictions which were neither invalid when entered, nor when used for impeachment purposes during the 1969 trial, under
pre-Long
principles. Counsel have not informed this Court, nor does this Court know, how many persons are in the same position as Douglas, but they must be many if not legion in number. It is in that context that this Court addresses itself herein to the issue of retroactivity,
i. e.,
in the context of focusing herein upon the dates upon which the entry of judgment of conviction and the alleged wrongful use of impeachment testimony took place. In
Lambert,
the use after
Long
of a judgment dated after
Long
was held constitutionally wrongful. In this case, Douglas seeks to have this Court declare that use of a judgment entered before
Long
in a trial held
before Long
entitles him to have held invalid a conviction obtained in such trial.
In
Loper,
Mr. Justice Stewart emphasized (405 U.S. at 484, 92 S.Ct. 1014) that a conviction of a defendant without counsel “lacked reliability” and that the
Gideon
principle goes “to ‘the very integrity of the fact-finding process’ in criminal trials * * In
Burgett,
Mr. Justice Douglas (389 U.S. at 115, 88 S.Ct. 258) characterized the use of convictions obtained in violation of
Gideon
as “inherently prejudicial” and that such prior convictions were “presumptively void”.
In
United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the defendant took the stand in his 1953 federal bank robbery trial before a jury and his credibility was impeached by the use of prior convictions obtained in proceedings in which he was not afforded counsel. Although
Gideon
was not decided until 1963, the District Court and the Ninth Circuit considered that use to be constitutional, albeit harmless, error insofar as the obtention of the 1953 conviction was concerned. However, because the prior convictions had been explicitly considered by the District Judge in connection with sentencing, the Ninth Circuit remanded for resentencing. The Supreme Court affirmed. In so doing, Mr. Justice Stewart wrote (at 447-48, 92 S.Ct. at 592):
We need not speculate about whether the outcome of the respondent’s 1938 and 1946 prosecutions would nee
essarily have been different if he had had the help of a lawyer.
* * *
“[E]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . That goverment hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.” 372 U.S., at 344, 83 S.Ct. 792.
Tucker
dealt with a situation in which counsel was not provided. That is not what is involved in this case. The trial of a defendant who is not afforded counsel is considerably more constitutionally suspect than a proceeding against a sixteen year old person as an adult which proceeding in and of itself in the absence of equal protection violations is not subject to constitutional challenge.
See Woodall v. Pettibone,
465 F.2d
supra
at 52 n. 7, quoted
infra
at p. 9.
In
Beto v. Stacks,
408 F.2d 313 (5th Cir. 1969), decided well before
Loper,
the question arose, as it did in
Burgett,
concerning the introduction into evidence of a conviction unconstitutionally obtained,
for purpose of enhancement of punishment rather than to attack a defendant’s credibility. However, because the evidence of the previous conviction was made known to the jury before its determination as to guilt or innocence, Judge Goldberg held that the defendant had a right to have a completely new state court trial because of the “infectious influence” occasioned by “the use of a void conviction” upon the jury’s said determination. 408 F.2d
supra
at 318. Judge Goldberg also (at 318) rejected the application upon the facts of
Stacks
of the
Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error doctrine.
In
United States v. Penta,
475 F.2d 92 (1st Cir. 1973), the defendant had been convicted of fraudulently possessing and transferring counterfeit Federal Reserve Notes after a federal jury trial in which his credibility was impeached by prior state convictions. Subsequently, those prior convictions were expunged in a state court post-conviction collateral proceeding because certain of the evidence introduced during such prior trial had been obtained as the result of an illegal search and seizure. Penta then moved for a new federal trial, claiming entitlement thereto because of the use at trial of those state court convictions for the purpose of impeachment of Penta’s trial testimony. After Penta’s motion was denied by the District Court, Penta appealed from that denial. In the course of affirming, and rejecting Penta’s said contention, Chief Judge Coffin, after
discussing the
Stacks
case, wrote (at 94):
In the light of subsequent developments involving the exclusionary rule and
Stacks’
omission of any discussion of
Walder v. United States,
347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954),
see infra,
we feel compelled to examine anew the issue in
Stacks.
We agree that the use of evidence obtained from an unlawful search and seizure has a definite influence on the fact-finding process, but in a very different way from deprivation of counsel. Such evidence tends to make the resulting conviction more, not less trustworthy. There is no lack of reliability as there was in
Loper.
And (at 95) Judge Coffin continued:
* * * [A]ppellant has already received a remedy which is the most appropriate — his prior convictions were reversed. * * *
Accordingly (at 96), Judge Coffin held:
* * * We only go so far as to hold that a conviction which may have been influenced by the use, for general impeachment purposes, of prior convictions, which have been subsequently overturned on constitutional grounds relating to an illegal search or seizure may properly stand. .
In his concurring opinion Judge Aldrich commented (at 96-97):
•x- * -x- [T]he reasons given by the [Supreme] Court for distinguishing
Gideon
from
Mapp
convince me that, with due respect to
Beto v. Stacks,
5 Cir., 1969, 408 F.2d 313, the nature of the constitutional defect does make a difference in this kind of case. Basically the
Mapp
rule was of constitutional proportions because of its prophylactic importance, rather than because of its prejudicial effect on the defendant’s trial. * * *
The cases decided to date provide guidelines, but not any applicable holdings, as to the issue before this Court herein. Turning back to that issue, this Court notes that the real flaw with pre
Long
convictions is that they resulted from proceedings in which like defendants were treated as unlike, and not because any defendant was treated in a particularly improper manner. Thus, in
Woodall,
Judge Craven wrote (465 F.2d
supra
at 52 n. 7):
We do not think there would be an equal protection objection to treating all 16-year-old people as adults for purposes of criminal liability, nor would such treatment “shock the conscience.” The constitutionally impermissible action is making criminal liability more likely for special groups without a rational reason.
* * * -X- -X- *
Obviously then, convictions which offend
Long
differ considerably from those which offend
Gideon.
The latter are improper
per se,
while the former are improper only if and when other procedures are deemed to have been permitted to some, and denied to other, defendants who otherwise are alike. Accordingly, there is nothing inherently wrong with convictions which offend
Long. On their own
they do not violate any right of a defendant. In expressing those views this Court has not lost sight of Judge Craven’s statement (at 52) in
Woodall
that “[t]o deny juveniles in Baltimore the opportunity of such a defense and to allow it to all other juveniles in Maryland seems to us so fundamentally unfair as to impeach the validity of the ‘adult’ proceedings and render unreliable the guilty verdicts obtained in these proceedings. * * * ” (Footnote omitted.) However, in so doing, Judge Craven was seemingly substantially tracking language which he had quoted earlier in
Woodall
(at 51) from
Williams v. United States,
401 U.S. 646, 653, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), dealing with the tests to be applied in determining whether a constitutional ruling should be given retroactive effect, and apparently was not considering the question of whether his ruling in
Woodall
should be given retroactive effect for purposes of voiding a later conviction obtained in a trial in which the earlier conviction, which under
Long’s
subsequently announced doctrine, was erroneously used for impeachment purposes.
See
the discussion herein
supra
at pp. 4-5.
Herein it is most important to consider the likelihood and the extent to which the course of Douglas’ trial in the state robbery ease herein involved was affected by the use of the earlier pre
Long
convictions. And in that connection the degree to which Douglas was prejudiced in those earlier trials by being tried as an adult must be kept in mind. That there existed a strong possibility of such occurrence of prejudice has been emphasized by Judge Craven as follows in
Woodall
(at 52 n. 6):
Notwithstanding the observations of the district court upon the absence in juvenile proceedings of some procedures now considered constitutionally necessary in a criminal trial,
Woodall v. Keller,
337 F.Supp. 595, 599 (D. Md.1972), the general advantages of being accorded juvenile treatment have been well documented.
Kemplen v. Maryland,
428 F.2d at 173-74;
Long v. Robinson, supra.
Perhaps the greatest advantage in the long run is that provided by Md.Code, Art. 26 § 61 (1957). “No adjudication by the judge upon the status of any child shall operate to impose any civil disabilities, nor shall any child be deemed a criminal by reason of such adjudication.”
In that connection it is also to be noted that at the present time the Annotated Code of Maryland provides:
The proceedings in the juvenile court regarding a child are not admissible as evidence against him in criminal proceedings, prior to conviction, unless the charge is perjury. (An.
Code 1957, art. 26, § 70-21; 1973, 1st Sp.Sess., ch. 2, § 1.)
Md.Ann.Code
Cts & Jud.Proc.
art. 3, § 3-834 (1974). In Maryland it is thus presently impermissible to attack a witness’ credibility by asking him about his past record of juvenile offenses.
Westfall v. State,
243 Md. 413, 423-24, 221 A.2d 646 (1966).
Cf. Cook v. State,
8 Md.App. 243, 259-60, 259 A.2d 326 (1969).
That brings this Court to the impact herein of the doctrine of harmless error as enunciated in
Chapman v. California,
386 U.S.
supra
at 24, 87 S.Ct. 824.
In
Lambert v. Warden, supra,
in a federal habeas corpus proceeding, Lambert challenged his April 1972 non-jury conviction on the grounds that in a
post-Long
setting his credibility upon his cross-examination at trial was unconstitutionally impeached by convictions obtained in violation of Long’s holding. Relying largely upon his earlier holding in
Mayo v. Warden,
No. 70-1080 (D.Md.October 14, 1971),
aff’d,
No. 71-2080 (4th Cir. July 14, 1972), in which Mayo's complaint regarding his impeachment in a non-jury trial on cross-examination by the use of a prior conviction invalid under
Gideon
was held on the facts of that case to be harmless error, Judge Harvey reached, on the facts of
Lambert,
that same conclusion.
However, the applicability of that decision in a non-jury case in this, a jury case, raises the factual question of the adverse effect, if any, which the use of Douglas’ prior juvenile convictions had upon Douglas’ credibility in the eyes of the jury which tried and convicted him.
The answer might well be that that extent, if any, must have been negligible in view of the fact that Douglas’ credibility was impeached, not only by invalid-under-Lcmy approximately 10-year-old juvenile convictions for larceny and burglary, but also impeached by a valid burglary conviction within the very year of his trial; in view of the very strong identification evidence against Douglas (T. Tr. 32-33, 50, 53-55, 63, 69, 72) by two tellers from the bank which had been robbed; and in view of the weakness of Douglas’ alibi defense. On balance, the scales might well tip in favor of the State. But the resolution of that harmless error issue is a close one in this case which involves consideration of harmless error in a state jury trial
—and is one which this Court need not and does not make in view of its determination as to the question of retroactivity. For on balance, that retroactivity issue, as thorny as it is, must in this Court’s opinion be resolved in the State’s favor. First of all, Douglas was not afforded a trial under inherently invalid conditions. Second, if Douglas is given the retroactive benefit he seeks herein, Long’s application will be seemingly extended to many more persons than the 122 persons referred to by Judge Craven in
Woodall
(at 53). Accordingly, the State’s burden will be rather considerably increased, a result which in and of itself is not controlling, but which still must not be lost sight of. In
Desist v. United States,
394 U.S. 244, 248-49, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969), Mr. Justice Stewart wrote:
Ever since
Linkletter v. Walker,
381 U.S. 618, 629 [85 S.Ct. 1731, 1037, 14 L.Ed. 601], established that “the Constitution neither prohibits nor requires retrospective effect” for decisions expounding new constitutional rules affecting criminal trials, the Court has viewed the retroactivity or nonretroactivity of such decisions as a function of three considerations. As we most recently summarized them in Stovall v. Denno, 388 U.S. 293, 297 [87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199], “The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”
Foremost among these factors is the purpose to be served by the new constitutional rule. This criterion strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule. * * * [Footnotes omitted.]
And (at 251, 89 S.Ct. at 1035):
* * * It is to be noted also that we have relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity. * * * [Footnote omitted.]
The question in issue here deals with the use of
pre-Long
convictions for impeachment purposes and not with the validity of those convictions themselves, and thus may appropriately be classified with those retroactivity cases “bearing on the use of evidence or on a particular mode of trial”,
Robinson v. Neil,
409 U. S. 505, 508, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973);
see also Desist v. United States, supra,
and
Linkletter v. Walker,
381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), as opposed, for example, to a double jeopardy type of constitutional violation considered in
Robinson.
In
Robinson, Waller v. Florida,
397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and its particular double jeopardy holding, was held retroactive. Further, if Douglas and every person like him can gain the relief sought herein, it will seemingly be necessary, under
Woodall,
which (at 53) followed
Kem
plen’s approach, to give the State of Maryland the opportunity to establish whether “the Maryland Juvenile Court Judge would have, because of the facts and circumstances, waived jurisdiction to an adult court.” The Fourth Circuit, in
Woodall,
subjected the State of Maryland to that burden in connection with 122 persons held in custody, or on probation or parole, as a result of pr
e-Long
convictions. That burden was imposed because of the essential unfairness otherwise occasioned to persons whose liberty was restrained solely because of pr
e-Long
convictions. As to Douglas, the current restraint upon his liberty cannot be ascribed solely to Douglas’ pr
e-Long
convictions, but rather to a conviction for another offense obtained
in a jury trial presided over by Judge Liss which in and of itself was conducted with respect for principles of fundamental fairness.
In sum, on balance, this Court concludes that Douglas must be denied the habeas corpus relief he seeks in this case.