Defendant Raymond Showery asserts in this habeas corpus petition that the doctrine of collateral estoppel applies, as a constitutional requirement, to bar the State of Texas from prosecuting him for the offense of involuntary manslaughter. Showery allegedly committed this offense while free on an appellate bond that had been granted pending Showery's appeal of his previous conviction for murder.1 The state sought revocation of the appellate bond, alleging that by committing the manslaughter offense Showery violated his bond conditions. The district court revoked the bond but the Texas Court of Appeals held that the state adduced insufficient proof to demonstrate by a preponderance of the evidence that Showery had committed the offense.2 The Texas Court of Criminal Appeals affirmed the appellate court decision.3 When the state attempted to prosecute Showery for involuntary manslaughter, he filed a state habeas challenge which the state courts denied.4 After exhausting his state remedies he filed for federal habeas relief, which the district court denied. Although the question is a close one, we affirm because Showery was never in jeopardy of being twice criminally punished for the same offense.

We begin with the basic principle that a petitioner challenging state criminal proceedings must establish a violation of the federal Constitution or laws or treaties of the United States before a federal court can grant a writ of habeas corpus. 28 U.S.C. Sec. 2241(c)(3). The constitutional underpinnings upon which Showery initially relies are founded in the fifth amendment guarantee against double jeopardy, which is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).5

The guarantee against double jeopardy protects against multiple punishments for the same offense and against a second prosecution for the same offense after either an acquittal or conviction. Davis v. Herring, 800 F.2d 513, 516 (1986) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969)). The doctrine of collateral estoppel stands for the principle that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1191, 25 L. Ed. 2d 469 (1970).

In today's case, at the bond revocation hearing the state attempted to establish that Showery had committed the offense of involuntary manslaughter, thereby violating a condition of his bond. Article 44.04(c) of the Texas Code of Criminal Procedure provides: "On a finding by the Court on a preponderance of the evidence of a violation of a condition, the Court may revoke the bail." The Texas Court of Criminal Appeals affirmed the intermediate appellate court's determination that the state had failed to prove by a preponderance of the evidence that Showery had committed the manslaughter offense. See Showery v. State, 704 S.W.2d 153 (Tex.App.--El Paso 1986, pet. ref'd). Showery contends that this determination constituted a valid and final judgment concerning the issue of whether he committed the offense. Relying on Ashe, he urges therefore that the state be now collaterally estopped from attempting to relitigate this fact issue in a subsequent prosecution.

In Ashe six poker players were robbed by three or four persons. After the defendant was acquitted for the robbery of one of the victims, the state subsequently prosecuted him for the robbery of a different victim. On review, the Supreme Court first determined that in the initial prosecution, the single rationally conceivable issue was whether the defendant had been one of the robbers. Because that issue was resolved against the state, the Court held that the state could not constitutionally hail the defendant before a new jury to relitigate that issue. 397 U.S. at 446-47, 90 S.Ct. at 1195-96.

Ashe, however, does not carry the day. The Supreme Court decided that case after its Benton decision, which made the fifth amendment guarantee against double jeopardy fully applicable to the states. In that context, Ashe explicitly addressed the application of collateral estoppel as an "ingredient" of the fifth amendment guarantee against double jeopardy. 397 U.S. at 442, 90 S.Ct. at 1193. We have held that the double jeopardy clause does not apply to parole and probation revocation hearings. United States v. Whitney, 649 F.2d 296 (5th Cir. Unit B 1981). The risk against which double jeopardy protects is not present in proceedings that are not "essentially criminal." Id. at 297 (citing Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975)). In Breed v. Jones, a juvenile court initially determined that the allegations brought by the state--that the defendant had committed the juvenile equivalent of armed robbery--were true. The high court determined that double jeopardy protections attached to the juvenile adjudication, thus barring the state from subsequently prosecuting the defendant, as an adult, for armed robbery.

In Whitney, the state initially sought a revocation of parole, alleging specific acts of misconduct, but the state failed to prevail because the parole term had expired. The state then sought to revoke Ms. Whitney's probation, alleging the same dilatory conduct. This Court found a fundamental distinction between parole and probation proceedings and the juvenile adjudication found to be "essentially criminal" in Breed v. Jones. Parole and revocation proceedings are not designed to punish for the violations of criminal laws, but to determine whether the conditions of parole or probation have been violated, and thus ultimately to determine whether the parolee or probationer is a good risk. That reasoning applies with equal force to appellate bond revocation proceedings. Even though the alleged basis for bond revocation is the commission of a subsequent offense, the proceedings are not designed to obtain a conviction for the violation of that offense. They are designed to assess the propriety of allowing the defendant, who has already been convicted and sentenced on a separate charge, to remain free on bond. Such proceedings are not "essentially criminal."

We are mindful that the nonapplication of double jeopardy to parole, probation, and appellate bond proceedings can afford the government a second bite at the apple. If it fails the first time, it has the opportunity to bolster and refine its initially unpersuasive case. We are also mindful that this "trial run" is not entirely unhelpful to the defendant in preparing his case.

Showery vigorously argues that this is a collateral estoppel case and not a double jeopardy claim. We are unpersuaded, however, by his attempts to erect a due process basis, independent of the double jeopardy clause, for the application of collateral estoppel. The Ashe decision provides him little solace. It squarely held that the rule of collateral estoppel is "embodied in the fifth amendment guarantee against double jeopardy." 397 U.S. at 445, 90 S.Ct. at 1195. In Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), a pre-Benton decision, the Court had addressed virtually the same facts as those found in Ashe. The Hoag court had addressed the constitutional issue solely as a due process question under the Fourteenth Amendment. In dicta, the Court noted its "grave doubts whether collateral estoppel can be regarded as a constitutional requirement." Noting the Hoag dicta, the Ashe court reiterated that the basis for its contrary result was the intervention of the Benton decision, which applied the double jeopardy clause to the states. Ashe thus makes it clear that collateral estoppel applies insofar as it is necessary to safeguard against the risk of double jeopardy, i.e. the risk of unfair and abusive reprosecutions.6 397 U.S. at 445, n. 10, 90 S. Ct. at 1195, n. 10.

Showery asserts that our Court has applied collateral estoppel to bar a state from attempting to establish the fact of the crime, once that issue has already been decided against the government, citing United States v. Mock, 604 F.2d 341 (5th Cir.1979).7 That case provides little assistance to Showery in his effort to clear the threshold burden of showing a constitutional basis for his collateral estoppel claim. Mock involved two criminal proceedings alleging violations of federal laws. Collateral estoppel has long been an established rule of federal criminal law. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. Furthermore, the Mock Court specifically noted the link between collateral estoppel and double jeopardy, stating that "while the parent doctrine of double jeopardy bars a subsequent prosecution ... its progeny, collateral estoppel, bars only reintroduction or relitigation of facts already established against the government. 604 F.2d at 343. Thus, Mock applies collateral estoppel pursuant to Ashe and does not purport to expand the constitutional basis for the application of collateral estoppel beyond the double jeopardy clause.

The Texas Court of Criminal Appeals has recently held that collateral estoppel bars the subsequent prosecution of an offense after the state has failed to prove "identical allegations" in a probation revocation hearing. In re Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986).8 In reaching its determination, the court relied on a number of Texas cases, in addition to Breed v. Jones and Mock. It is of course within that court's purview to extend state constitutional guarantees beyond those afforded by the federal Constitution. For reasons we have already stated, however, we find Whitney controlling and decline to extend double jeopardy protections to appellate bond revocations. Furthermore, we decline to find the collateral estoppel doctrine cognizable as a constitutional claim apart from those claims that are recognized under the double jeopardy clause.

Accordingly, we AFFIRM the district court's denial of federal habeas corpus relief.

I respectfully dissent.

I believe that double jeopardy attaches in this case. It is true that a bail proceeding is primarily administrative, not punitive, in nature, and thus may not necessarily require double jeopardy to attach, see United States v. Whitney, 649 F.2d 296 (5th Cir. Unit B 1981); cf. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). But the revocation of bail hearing held here provided the government with identical prosecutorial motivations regarding public safety as would a criminal trial, and the defendant with identical liberty concerns. The government attempted to incarcerate Showery for the commission of a crime, and had they succeeded, Showery would have gone to jail. I thus see no persuasive distinction between this situation and that in Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). Simply put, the bail hearing though administrative in form was punitive in substance.

Even were double jeopardy not to attach, collateral estoppel could be raised as a successful constitutional defense to prosecution. As the Supreme Court recognized in Ashe v. Swenson, 397 U.S. 436, 441-42, 90 S. Ct. 1189, 1193, 25 L. Ed. 2d 469 (1970), Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), reh. denied, 357 U.S. 933, 78 S. Ct. 1366, 2 L. Ed. 2d 1375 (1958), did not determine whether collateral estoppel was constitutionally required under the Fifth and Fourteenth Amendment Due Process Clauses. In deciding that collateral estoppel was constitutionally required under the Double Jeopardy Clause, however, the Supreme Court did not foreclose the possibility that collateral estoppel might also be constitutionally required in a criminal context as a "fundamental principle of ordered liberty" or as a principle of "fundamental fairness." Ashe, 397 U.S. at 442, 90 S. Ct. at 1193 ("The doctrine of Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, [23 L. Ed. 2d 707 (1969),] puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, supra.") (emphasis added). To the contrary, the existence of this independent, constitutional requirement of collateral estoppel is strongly suggested by Ashe's explicit recognition that criminal collateral estoppel evolved from its civil analogue, in a context where double jeopardy does not exist. Id. at 443, 90 S. Ct. at 1194 (citing United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 (1916)); see id. at 447, 90 S.Ct. at 1196 (Black, J., concurring) (criticizing the majority for implying that fundamental fairness may be applicable to collateral estoppel); cf. Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684 (1886) distinguished on burden of proof grounds and limited, 89 Firearms, 65 U.S. at 358-61, 104 S.Ct. at 1103-04.

Collateral estoppel should bar the subsequent prosecution here. The precise issue that was decided in the bail revocation hearing is now being tried: whether Showery had committed the involuntary manslaughter. The government failed to prove this under a substantially lower burden of proof requirement. Thus, "when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 397 U.S. at 443, 90 S.Ct. at 1194.

Assuming that double jeopardy should not attach, no irreparable injury would occur were Showery required to raise his collateral estoppel defense in the state court in the first instance. I would therefore abstain from enjoining the state trial court. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); Kolski v. Watkins, 544 F.2d 762 (5th Cir.1977). Because I believe double jeopardy should attach, however, I must dissent from the judgment of the majority.