L. R. Bretz v. Roger Crist, Etc., Merrel Cline v. The State of Montana, Etc.

546 F.2d 1336 L. R. BRETZ, Petitioner-Appellant, v. Roger CRIST, etc., et al., Respondents-Appellees. Merrel CLINE, Petitioner-Appellant, v. The STATE OF MONTANA, etc., et al., Respondents-Appellees. Nos. 76-1572 and 76-1169. United States Court of Appeals, Ninth Circuit. Nov. 18, 1976. W. William Leaphart (argued), Helena, Mont., for petitioners-appellants. Albert W. Meloling, Sp. Asst. Atty. Gen. (argued), Helena, Mont., for respondents-appellees. Before CHAMBERS, Chief Judge, and TUTTLE * and KILKENNY, Circuit Judges. TUTTLE, Circuit Judge: 1 The tension between federalism and the doctrine of selective incorporation of Bill of Rights guarantees via the Fourteenth Amendment inevitably generates appeals such as this. Appellants contend that a second prosecution brought against them by the State of Montana violated the double jeopardy clause of the Fifth Amendment as applied to the states through the due process clause of the Fourteenth Amendment. In denying their petition for habeas corpus, following conviction at the second trial, the United States District Court for the District of Montana agreed with the state that state, not federal, law determines when jeopardy attaches and…