Justice White
delivered the opinion of the Court.
We granted certiorari, 463 U. S. 1206 (1983), to review a decision of the Court of Appeals for the First Circuit affirming the issuance of a writ of habeas corpus. The Court of Appeals agreed with the District Court that the trial de novo of respondent Lydon, pursuant to Massachusetts’ “two-tier” system for trying minor crimes, would violate his right not to be placed twice in jeopardy for the same crime, because it determined that insufficient evidence of a critical element of the charge was adduced at the first-tier trial. We reverse.
I
Under Massachusetts law, a defendant charged with certain crimes in Boston Municipal Court may elect either a bench trial or a jury trial. Mass. Gen. Laws Ann., ch. 218, §§ 26, 26A (West Supp. 1983-1984). If a defendant chooses a jury and is convicted, he has the normal appellate process open to him, while a defendant dissatisfied with the results of a bench trial, if he elects that course, has an absolute right to a trial de novo before a jury. §§ 26 and 27A. A convicted defendant who has chosen a bench trial need not allege error at that trial to obtain de novo review. On the other hand, he may not rely upon error at the bench trial to obtain reversal of his conviction; his only recourse is a trial de novo.
Respondent Michael Lydon was arrested after breaking into an automobile in Boston. He was charged with the knowing possession of implements “adapted and designed for forcing and breaking open a depository [an automobile] in order to steal therefrom, such money or other property as might be found therein” with intent “to use and employ them therefor.” Record, Complaint. Lydon elected to undergo a first-tier bench trial and was convicted. The trial judge rejected Lydon’s claim that the prosecution had introduced no evidence that Lydon intended to steal from the car and that his actions were as consistent with activities not covered by the complaint. Lydon was sentenced to two years in jail.
Lydon requested a trial de novo in the jury session of the Boston Municipal Court. Pending retrial, he was released on personal recognizance. Before the jury trial commenced, Lydon moved to dismiss the charge against him on the ground that no evidence of the element of intent had been presented at the bench trial. He contended that retrial was therefore barred under the principles of Burks v. United States, 437 U. S. 1 (1978), which held that the Double Jeopardy Clause bars a second trial when a reviewing court reverses a conviction on the ground that the evidence presented at the first trial was legally insufficient.
After the motion to dismiss was denied, Lydon sought relief in the single justice session of the Supreme Judicial Court of Massachusetts. See Mass. Gen. Laws Ann., ch. 211, §3 (West 1958). The single justice issued a stay of the de novo trial and reported two questions to the full bench:
"1. Is it a denial of a defendant’s right not to be placed in double jeopardy to require him to go through a jury trial, requested by him without waiving his rights, when the evidence at the bench trial was insufficient to warrant a conviction?
“2. Assuming that a jury trial in such an instance would be a denial of a defendant’s right not to be placed in double jeopardy, may the issue of the sufficiency of the evidence at the bench trial be considered again at the trial court level, assuming, of course, that the judge at the bench trial has denied an appropriate request for a ruling that the evidence at the bench trial was insufficient?”
The single justice did not report a finding on the sufficiency of the evidence, although he did state that he was “of the view that the evidence was not sufficient to warrant guilty findings.” Record, Reservation and Report, at 3. He also noted that the prosecution conceded that the evidence presented was insufficient to warrant a finding of guilt on the charges set forth in the complaint. Ibid.
On review by the Supreme Judicial Court, the court initially noted that the single justice did not sit as a reviewing court in determining the sufficiency of the evidence and that any conclusion reached by him on that issue “was made for the purpose of reporting clearly framed questions to the full bench and is not an adjudication of the rights of the parties in this case.” Lydon v. Commonwealth, 381 Mass. 356, 359, n. 6, 409 N. E. 2d 745, 748, n. 6, cert. denied, 449 U. S. 1065 (1980). The Massachusetts court then found Lydon’s double jeopardy argument to be without merit. Because no appellate court had ruled that the evidence was insufficient at Lydon’s trial, and indeed no court ever would have occasion to do so under Massachusetts law, the court found Burks inapplicable. Burks, the court observed, did not address the question whether under double jeopardy principles a defendant convicted on insufficient evidence at a bench trial has a right to reconsideration of the sufficiency of the evidence prior to a trial de novo. The court concluded that “[a] defendant is not placed in double jeopardy merely because his only avenue of relief from a conviction based on insufficient evidence at a voluntarily sought bench trial is a trial de novo.” 381 Mass., at 367, 409 N. E. 2d, at 752. As to the second reported question, the court concluded that if there is a valid double jeopardy claim, it should be dealt with prior to the trial de novo, although it acknowledged that its conclusion on this question was “rendered largely academic” by its answer to the first question since any double jeopardy claim presented to the second-tier court would necessarily be rejected. Id., at 366, 409 N. E. 2d, at 752.
Lydon then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. First addressing the question of its jurisdiction, the District Court held that Lydon was “in custody” for purposes of 28 U. S. C. § 2254(b) and that he had exhausted his state remedies because there was no state remedy available to him short of submitting to a second trial. 536 F. Supp. 647 (1982). On the merits, the District Court viewed Burks v. United States, supra, as “bestow[ing] a constitutional right upon defendants not to be retried when the initial conviction rests on insufficient evidence,” 536 F. Supp., at 651, and thought that this holding foreclosed a second trial if the evidence against Lydon at the bench trial was insufficient, id., at 652. After reviewing the transcript of the bench trial, the District Court concluded that there was insufficient evidence of intent to support a conviction and ordered the writ to issue. On appeal, a divided Court of Appeals for the First Circuit affirmed in all respects. 698 F. 2d 1 (1982).
HH
A
We first address the Commonwealth’s contention that the District Court lacked jurisdiction to entertain Lydon’s habeas corpus action because he was not in “custody” for purposes of the statute and had not exhausted his state remedies. Under 28 U. S. C. § 2241(c), a “writ of habeas corpus shall not extend to a prisoner unless ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States.” Similarly, 28 U. S. C. § 2254(a) states that a writ of habeas corpus is available to persons “in custody pursuant to the judgment of a State court.” Petitioners argue that because Lydon’s first conviction had been vacated when he applied for a trial de novo, and because he had been released on personal recognizance, he was not in “custody.”
Our cases make clear that “the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody.” Jones v. Cunningham, 371 U. S. 236, 239 (1963). In Hensley v. Municipal Court, 411 U. S. 345 (1973), we held that a petitioner enlarged on his own recognizance pending execution of sentence was in custody within the meaning of 28 U. S. C. §§ 2241(c)(3) and 2254(a). Hensley’s release on personal recognizance was subject to the conditions that he would appear when ordered by the court, that he would waive extradition if he was apprehended outside the State, and that a court could revoke the order of release and require that he be returned to confinement or post bail. Although the restraints on Lydon’s freedom are not identical to those imposed on Hensley, we do not think that they are sufficiently different to require a different result.
The Massachusetts statute under which Lydon was released subjects him to “restraints not shared by the public generally.” 411 U. S., at 351. He is under an obligation to appear for trial in the jury session on the scheduled day and also “at any subsequent time to which the case may be continued . . . and so from time to time until the final sentence.” Mass. Gen. Laws Ann., ch. 278, §18 (West 1981). Failure to appear “without sufficient excuse” constitutes a criminal offense. Ch. 276, § 82A. Also, if Lydon fails to appear in the jury session, he may be required, without a further trial, to serve the 2-year sentence originally imposed. Ch. 278, § 24. Finally, the statute requires that he “not depart without leave, and in the meantime . . . keep the peace and be of good behavior.” Ch. 278, § 18. Consequently, we believe that the Court of Appeals correctly held that Lydon was in custody.
Petitioners contend that a conclusion that a person released on personal recognizance is in custody for purposes of the federal habeas corpus statutes will “ope[n] the door to the federal court to all persons prior to trial. ” Brief for Petitioners 24. We addressed the same argument in Hensley:
“Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing in today’s opinion alters the application of that doctrine to such a defendant.” 411 U. S., at 353.
B
We are also convinced that Lydon had exhausted his state remedies with respect to his claim that his second trial would violate his right not to be twice placed in jeopardy unless it is judicially determined that the evidence at his first trial was sufficient to sustain his conviction. This precise claim was presented to and rejected by the Supreme Judicial Court of Massachusetts. That court definitively ruled that Lydon had no right to a review of the sufficiency of the evidence at the first trial and that his trial de novo without such a determination would not violate the Double Jeopardy Clause. That Lydon may ultimately be acquitted at the trial de novo does not alter the fact that he has taken his claim that he should not be tried again as far as he can in the state courts.
We should keep in mind in this respect the unique nature of the double jeopardy right. In Abney v. United States, 431 U. S. 651 (1977), the Court held that denial of a motion to dismiss an indictment on double jeopardy grounds constitutes a final order for purposes of 28 U. S. C. § 1291. That decision was based upon the special nature of the double jeopardy right and the recognition that the right cannot be fully vindicated on appeal following final judgment, since in part the Double Jeopardy Clause protects “against being twice put to trial for the same offense.” Id., at 661 (emphasis in original). Because the Clause “protects interests wholly unrelated to the propriety of any subsequent conviction,” ibid., a requirement that a defendant run the entire gamut of state procedures, including retrial, prior to consideration of his claim in federal court, would require him to sacrifice one of the protections of the Double Jeopardy Clause.
In our view, therefore, Lydon had exhausted his double jeopardy claim in the state courts, and that precondition to the District Court’s jurisdiction was satisfied. We conclude below, however, that the District Court and the Court of Appeals erred in sustaining Lydon’s double jeopardy claim: in our view, Lydon could be retried de novo without any judicial determination of the sufficiency of the evidence at his prior bench trial.
HH
In Ludwig v. Massachusetts, 427 U. S. 618 (1976), we upheld a prior Massachusetts two-tier system of trial courts for criminal cases. The present system differs from the system upheld in Ludwig in only one respect of significance here. Prior to the Massachusetts Court Reorganization Act of 1978, a defendant could not elect a jury trial in the first instance; he was required to participate in the first-tier proceedings. Under the present system, as noted above, a defendant may avoid the first-tier trial altogether and proceed directly to the jury trial. In upholding the prior Massachusetts system, we stated:
“The Massachusetts system presents no danger of prosecution after an accused has been pardoned; nor is there any doubt that acquittal at the first tier precludes reprosecution. Instead, the argument appears to be that because the appellant has been placed once in jeopardy and convicted, the State may not retry him when he informs the trial court of his decision to ‘appeal’ and to secure a trial de novo.
“Appellant’s argument is without substance. The decision to secure a new trial rests with the accused alone. A defendant who elects to be tried de novo in Massachusetts is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial. Under these circumstances, it long has been clear that the State may re-prosecute. United States v. Ball, 163 U. S. 662 (1896). The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant in Massachusetts may obtain a ‘reversal’ and a new trial without assignment of error in the proceedings at his first trial. Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal.” Id., at 631-632.
Our decision in Ludwig, which we think is dispositive of the double jeopardy issue in this case, was not disturbed by our later decision in Burks v. United States, 437 U. S. 1 (1978). In Burks, the petitioner’s conviction had been set aside by the Court of Appeals on the ground that there had been insufficient evidence presented at his trial to support the verdict. The Court of Appeals then ordered the case remanded to the District Court for a determination of whether a new trial should be ordered or a directed verdict of acquittal should be entered. We reversed, stating:
“In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. . . .
“The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” Id., at 15-16. (footnote omitted) (emphasis in original).
We summarized our holding in Burks as being “that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id., at 18.
Lydon argues, and the Court of Appeals held, that our statement in Ludwig that a defendant who elects to be tried de novo is in the same position as a convicted defendant who successfully appeals, combined with our holding in Burks that the setting aside of a conviction on the basis of eviden-tiary insufficiency bars retrial, mandates the conclusion that a trial de novo is barred by the Double Jeopardy Clause if the evidence presented at the bench trial was insufficient to support a finding of guilt. We are unpersuaded.
A
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb. ” In Benton v. Maryland, 395 U. S. 784 (1969), we held that this guarantee is applicable to the States through the Fourteenth Amendment.
Our cases have recognized three separate guarantees embodied in the Double Jeopardy Clause: It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Illinois v. Vitale, 447 U. S. 410, 415 (1980). The primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant. As was explained in Green v. United States, 355 U. S. 184, 187-188 (1957):
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
The primary purpose of foreclosing a second prosecution after conviction, on the other hand, is to prevent a defendant from being subjected to multiple punishments for the same offense. See United States v. Wilson, 420 U. S. 332, 343 (1975).
In this case, the Commonwealth is not attempting to impose multiple punishments for a single offense. Nor is it making another attempt to convict Lydon after acquittal. It is satisfied with the results of the bench trial and would have abided the results of a jury trial had Lydon taken that initial course. The conceptual difficulty for Lydon is that he has not been acquitted; he simply maintains that he ought to have been. His claim is that the evidence at the bench trial was insufficient to convict and that a second trial to a jury will offend the fundamental rule that a verdict of acquittal may “not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy.” United States v. Ball, 163 U. S. 662, 671 (1896); United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). Our cases, however, do not take us as far as Lydon would like.
B
The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that the Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal. United States v. Ball, supra. The justification for this rule was explained in United States v. Tateo, 377 U. S. 463, 466 (1964), as follows:
“While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.”
In Price v. Georgia, 398 U. S. 323, 329 (1970), we recognized that implicit in the Ball rule permitting retrial after reversal of a conviction is the concept of “continuing jeopardy.” See also Breed v. Jones, 421 U. S. 519, 534 (1975). That principle “has application where criminal proceedings against an accused have not run their full course.” 398 U. S., at 326. Interests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver. Id., at 329, n. 4. Acquittals, unlike convictions, terminate the initial jeopardy. This is so whether they are “express or implied by a conviction on a lesser included offense.” Id., at 329. In Burks, 437 U. S. 1 (1978), we recognized that an unreversed determination by a reviewing court that the evidence was legally insufficient likewise served to terminate the initial jeopardy.
We assume, without deciding, that jeopardy attached at the swearing of the first witness at Lydon’s bench trial. The question then is whether jeopardy has now terminated. Lydon’s double jeopardy argument requires an affirmative answer to that question, but he fails to identify any stage of the state proceedings that can be held to have terminated jeopardy. Unlike Burks, who could rest his claim upon the appellate court’s determination of insufficiency, Lydon is faced with the unreversed determination of the bench-trial judge, contrary to Lydon’s assertion, that the prosecution had met its burden of proof. We noted in United States v. Martin Linen Supply Co., supra, at 571, that an acquittal “represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” (Emphasis added.) Lydon’s claim of evidentiary failure and a legal judgment to that effect therefore have different consequences under the Double Jeopardy Clause. We believe that the dissent in the Court of Appeals correctly described the nature of the de novo hearing as follows:
“While technically [the defendant] is ‘tried again,’ the second stage proceeding can be regarded as but an enlarged, fact-sensitive part of a single, continuous course of judicial proceedings during which, sooner or later, a defendant receives more — rather than less — of the process normally extended to criminal defendants in this nation.” 698 F. 2d, at 12 (Campbell, J., dissenting).
In Burks, the question involved the significance to be attached to a particular event — an appellate determination that the evidence was insufficient to support a conviction. Con-cededly, no such event has occurred here; but Lydon insists that he is entitled under the Federal Constitution to a review of the evidence presented at the bench trial before proceeding with the second-tier trial. Burks does not control this very different issue, and we are convinced that the Double Jeopardy Clause does not reach so far. Consequently, we reject the suggestion that Burks modified Ludwig, and we reaffirm our holding in the latter case.
HH <
A number of features of the Massachusetts system persuade us that it does not constitute “governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect,” United States v. Scott, 437 U. S. 82, 91 (1978), even when a defendant convicted at the first tier claims insufficiency of the evidence.
We note at the outset that Lydon was in “jeopardy” in only a theoretical sense. Although technically “jeopardy” under the Double Jeopardy Clause entails the “potential or risk of trial and conviction, not punishment,” Price v. Georgia, supra, at 329, it is worthy of note that virtually nothing can happen to a defendant at a first-tier trial that he cannot avoid. He has an absolute right to obtain the de novo trial, and he need not allege error at the first-tier trial to do so. Once the right to a de novo trial is exercised, the judgment at the bench trial is “wiped out.” Mann v. Commonwealth, 359 Mass. 661, 271 N. E. 2d 331 (1971).
The defendant’s right to obtain de novo review without alleging error is significant in that it ameliorates one of the concerns underlying our opinion in Burks. In Burks, we recognized the danger of “affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” 437 U. S., at 11. The Court of Appeals in this case stated that “[t]he process of judicial review has conveniently pinpointed the evidence which was lacking, and retrial simply gives the prosecutor another opportunity to supply it.” 698 F. 2d, at 8. However, the “process of judicial review” that resulted in the identification of the precise area of insufficiency is not a part of the ordinary Massachusetts procedure and would not have occurred had it not been for Lydon’s double jeopardy claim and the intervention by federal courts. In the usual case, there would be no review prior to the jury trial.
A claim that our decision in this case creates an incentive for a prosecutor to hold back and learn the defendant’s case in the first trial, in order to hone his presentation in the second, is unpersuasive. The prosecution has every incentive to put forward its strongest case at the bench trial, because an acquittal will preclude reprosecution of the defendant. Although admittedly the Commonwealth at the de novo trial will have the benefit of having seen the defense, the defendant likewise will have had the opportunity to assess the prosecution’s case. Because in most cases the judge presiding at the bench trial can be expected to acquit a defendant when legally insufficient evidence has been presented, it is clear that the system provides substantial benefits to defendants, as well as to the Commonwealth. In fact, as we recognized in Ludwig v. Massachusetts, 427 U. S., at 626-627, there appears to be nothing to stop a defendant from choosing a bench trial for the sole purpose of getting a preview of the Commonwealth’s case to enable him to prepare better for the jury trial. To put the matter another way, as we observed in Colten v. Kentucky, 407 U. S. 104, 119 (1972), a defendant’s chances in a two-tier system are “[i]n reality ... to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of a judge or jury in the superior court, with sentence to be determined by the full record made in that court.”
As the dissent in the Court of Appeals recognized, the two-tier system affords benefits to defendants that are unavailable in a more conventional system. 698 F. 2d, at 11-12 (Campbell, J., dissenting). In traditional systems, a convicted defendant may seek reversal only on matters of law; in the Massachusetts system a defendant is given two opportunities to be acquitted on the facts. If he is acquitted at the first trial, he cannot be retried. See Ludwig v. Massachusetts, supra, at 631. If he is convicted, he may then choose to invoke his right to a trial de novo and once again put the prosecution to its proof. If the prosecution fails in the second trial to convince the trier-of-fact of the defendant’s guilt beyond a reasonable doubt, an acquittal results. If the prosecution succeeds in obtaining a conviction the second time, the defendant then has the usual appellate remedies. As we noted in Ludwig, “[n]othing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal.” 427 U. S., at 632.
Although, as Judge Campbell said in dissent below, his colleagues’ opinion reflects “intelligence and logic,” we agree with him that their “relentless application of secondary precepts developed in other, very different settings” led to a wrong result not required by the Constitution and destructive of “a useful and fair state procedure.” 698 F. 2d, at 10. Accordingly, we reverse the judgment of the Court of Appeals.
So ordered.
At the second-tier trial, a defendant may waive a jury and undergo a second bench trial. Mass. Gen. Laws Ann., ch. 218, § 27A(g) (West Supp. 1983-1984).
We do not carve out a special-purpose jurisdictional exception for double jeopardy allegations with respect to custody. Nothing in our discussion of custody is dependent upon the nature of the claim that is raised. To the extent that double jeopardy claims are treated differently for ha-beas purposes, it is because of the application of the exhaustion principle, not because a different definition of custody is adopted.
The exhaustion requirement is set forth in 28 U. S. C. §2254, which provides in relevant part:
“(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“(c) An applicant shall not be deemed to have exhausted the remedies available in the cou.■'f the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
Section 2254(b) specifically allows for the issuance of habeas writs when circumstances exist “rendering [state] process ineffective to protect the rights of the prisoner.” In the circumstances of this case, there are no more state procedures of which Lydon may avail himself to avoid an allegedly unconstitutional second trial.
If our conclusion were otherwise, a further exhaustion issue would arise. The District Court and the Court of Appeals not only held that Lydon was entitled to a determination of the sufficiency of the evidence at his first trial but also proceeded to make this evidentiary determination. Yet it seems to us that the Supreme Judicial Court of Massachusetts held that any double jeopardy claim Lydon might have should be made prior to the beginning of the second trial, although it candidly stated that under its opinion no such claim could succeed. If the Massachusetts court was wrong, however, in ruling that Lydon was not entitled to a sufficiency determination, it is apparent that the way would be open for him to present his claim to the de novo court in precisely the manner that the Massachusetts court suggested that a double jeopardy claim should be submitted. In our view, therefore, the federal habeas corpus court in any event should not itself have ruled on the sufficiency of the evidence at Lydon’s first trial but should have stayed its hand and permitted the state court to make that determination in the first instance. Otherwise, Lydon could not be said to have exhausted his state remedies and satisfied the requirements of § 2254.
It is for that reason that reliance by Lydon and the courts below on Jackson v. Virginia, 443 U. S. 307 (1979), is misplaced. Jackson held that federal habeas courts must consider a petitioner’s federal due process claim that the evidence in support of his conviction was insufficient to have led a rational trier of fact to find him guilty beyond a reasonable doubt. No one has suggested, however, that Jackson in any way created an exception to the exhaustion requirement.
Because in our view Lydon may be retried and convicted without a review of the sufficiency of the evidence at his bench trial, there will never be an occasion for a federal habeas corpus court to deal with the evidentiary issue at that trial. Since Justice Stevens disagrees with our double jeopardy decision, he asserts that the federal court must perform its Jackson v. Virginia function with respect to the evidence at the first trial. He would postpone that task until after the second trial, however. Of course, if Lydon is convicted at his jury trial, the sufficiency of the evidence at that trial will concededly be open to review in a federal court, as Jackson v. Virginia mandates.
The Clause also, of course, protects against retrial after the declaration of a mistrial in certain circumstances. See United States v. Scott, 437 U. S. 82 (1978).
Justice Brennan suggests that the voluntary nature of the two-tier system strongly influences his conclusion. Post, at 325-326, and n. 8. It is not clear why that is so, given that his reasoning is based upon the defendant’s expectations, rather than a theory of waiver.
It appears that defendants recognize the advantages of two-tier systems. During one period studied, only about 9% of defendants chose a jury trial in the first instance. Moreover, thousands of cases were disposed of by convictions at bench trials because many convicted defendants did not exercise their right to appeal to the jury trial session. Lydon v. Commonwealth, 381 Mass. 356, 359, n. 5, 409 N. E. 2d 745, 748, n. 5, cert. denied, 449 U. S. 1065 (1980).
We also note the fact that the advantages of two-tier systems have led almost half of the States to adopt such systems. See 698 F. 2d 1, 2 (CA1 1982).
Of course, under the present Massachusetts two-tier system, a defendant can also wholly avoid the consequences of a first-tier trial by avoiding the trial altogether. A defendant has an unqualified right to proceed to a jury trial in the first instance. It thus cannot be said that the Commonwealth required that Lydon submit to two trials. In this sense, the current Massachusetts system is more favorable to defendants than was the system we upheld against constitutional attack in Ludwig v. Massachusetts. There is not the slightest hint in the record that Lydon, who was represented by counsel, did not choose the bench trial voluntarily.
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