417 U.S. 21 (1974)
While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate.1 A warrant issued charging Perry with the misdemeanor of assault with a deadly weapon.2 Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence to be served after completion of the prison term he was then serving.3
Perry then filed a notice of appeal to the Northampton County Superior Court for a trial de novo.4 After the filing of the notice of appeal but prior to the respondent's appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury.5 The indictment charged Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. It covered the same conduct.6
Perry entered a plea of guilty to the indictment in the Superior Court.7 He was sentenced to a term of five to seven years in the penitentiary to be served concurrently with the identical prison sentence he was then serving.8 Several months later the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina.9 He claimed that the indictment on the felony charge constituted double jeopardy and also deprived him of due process of law.10
The District Court dismissed the petition for failure to exhaust available state remedies.11 The United States Court of Appeals for the Fourth Circuit reversed and remanded to the District Court for further proceedings.12 On remand the District Court granted the writ.13 The Court of Appeals affirmed the judgment in a brief per curiam opinion.14 The Supreme Court granted certiorari to consider the issues presented by this case.15
Whether the Due Process Clause prohibits the State from obtaining a felony indictment against a defendant after he files a notice of appeal seeking a trial de novo on a prior misdemeanor conviction arising from the same conduct?16
The Due Process Clause prohibits the State from responding to a defendant's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.17 Such action poses a realistic likelihood of vindictiveness that may unconstitutionally deter exercise of the right to appeal.18
Yes. The rule applies directly to the established facts because Perry filed a notice of appeal to the Superior Court for a trial de novo after his misdemeanor conviction in the District Court.19 After the filing of the notice of appeal but prior to the trial de novo the prosecutor obtained a felony indictment covering the same conduct.20 This substitution of a more serious charge after the appeal was taken creates the prohibited apprehension of retaliatory motivation on the part of the prosecutor.21
The Due Process Clause prohibits the State from obtaining the felony indictment after Perry invoked his right to appeal.22
Related opinions on this issue
Justice Rehnquist dissents from the majority's due process holding in Part I.23 He would find it more difficult to conclude that the very bringing of more serious charges violated due process as defined in Pearce.24 The prosecutor elected to proceed initially in the District Court for reasons which may well have been unrelated to whether he believed respondent was guilty of the felony.25
The remedy reaches far beyond the wrong identified unlike the judicial vindictiveness addressed in Pearce.26 Even accepting the equation of prosecutorial and judicial vindictiveness, the prophylactic rule is unnecessary here.27
Whether a defendant's guilty plea to the felony charge in Superior Court precludes him from raising a due process claim in a subsequent federal habeas corpus proceeding?28
A guilty plea does not preclude a defendant from raising in federal habeas corpus a due process claim that goes to the very power of the State to bring the defendant into court to answer the charge brought against him rather than to antecedent constitutional violations.29
No. Although Perry entered a plea of guilty to the felony indictment in the Superior Court, the nature of the underlying constitutional infirmity is that the State was precluded by the Due Process Clause from calling upon him to answer the more serious charge.30 The guilty plea therefore does not foreclose the claim because Perry asserts the right not to be haled into court at all upon the felony charge.31
The guilty plea does not preclude Perry from raising the due process claim in the federal habeas corpus proceeding.32
Related opinions on this issue
Justice Rehnquist believes the due process claim should be treated like the claim in Tollett v. Henderson and merged in the guilty plea.33 The claim is antecedent in the same sense as the grand jury discrimination claim rejected in Tollett.34 The Court's distinction fails to provide a reasoned basis for treating the claim differently from other constitutional violations that precede a guilty plea.35
The departure from Henderson and the Brady trilogy marks a potentially major breach in the wall of certainty surrounding guilty pleas.36