Opinion
Case No. 2:99-CV-371 TC.
July 23, 2003.
ORDER
Petitioner, Henry L. Rudolph, has filed a habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). The Court denies his petition.
BACKGROUND
Petitioner was charged with aggravated burglary, aggravated sexual assault, and violation of a spouse abuse protection order. In alleging the aggravated burglary charge, the information stated that Petitioner had "entered or remained unlawfully in the dwelling of Noreen Oates with the intent to commit a sexual assault."
In a 1994 jury trial in which Petitioner represented himself, Petitioner was convicted of aggravated burglary and violation of a protective order, but acquitted of aggravated sexual assault. On appeal, with the public defender representing Petitioner, the Utah Supreme Court reversed Petitioner's convictions because many of the trial court transcripts had been lost due to a computer malfunction. The case was remanded for a new trial.
After Judge Hanson, who had presided over the first trial, recused himself, the case was assigned to Judge Brian. Petitioner moved to dismiss the public defender and to proceedpro se. Following a competency evaluation, the trial court granted his motion. The ensuing February 1996 jury trial resulted in a mistrial, with Judge Brian agreeing to recuse himself.
A few days later, Judge Brian met in chambers with the prosecutor and public defender. Petitioner was not present. Judge Brian later granted Petitioner's request to be represented again by the public defender. Several hearings on various matters were then held by Judge Brian over the next few months. Petitioner was present at these hearings. In one hearing, the trial court's denied the State's motion to amend the information, except to allow the State to delete the aggravated sexual assault charge (on which Petitioner had been acquitted). During this time, neither party objected to Judge Brian's continuing participation in the case.
However, five days before the trial date, Petitioner filed apro se document asking Judge Brian to recuse himself. On the first day of trial, before jury selection, Judge Brian stated he construed the document as a motion to disqualify him and would forward it to the presiding judge. Both defense counsel and Petitioner asserted Petitioner did not want to delay the trial, and Petitioner withdrew his motion. To clarify Petitioner's wishes, Judge Brian repeatedly asked him if Petitioner wanted the judge to recuse himself. Each time, Petitioner answered that he wanted the trial to go forth that day with Judge Brian at the helm.
The trial proceeded as scheduled, with the jury convicting Petitioner of aggravated burglary and violating a protective order. On appeal, the Utah Supreme Court affirmed the convictions. The court addressed the following issues raised by Petitioner: (1) Whether the trial court improperly instructed the jury regarding intent as to the burglary charge and regarding the "remaining unlawfully" language in the burglary statute; (2) whether there was insufficient evidence to convict Petitioner on both charges; (3) whether the trial court committed reversible error in failing to respond to a jury question; (4) whether the trial judge's earlier recusal tainted his handling of the trial; and (5) whether Petitioner's double jeopardy rights were violated.
Petitioner then brought this petition for federal habeas corpus relief. After some procedural wrangling, this Court dismissed Petitioner's case because some of the issues had not been exhausted in state court. Petitioner then brought those issues to the state court's attention in a state habeas petition. The state court's denial of the petition was affirmed by the Utah Supreme Court, addressing the following issues raised by Petitioner: (1) "Utah's burglary statute, as interpreted . . . on direct appeal and as applied to Rudolph, is unconstitutionally vague because it fails to sufficiently identify or define a forbidden act"; (2) "Rudolph was denied the right to represent himself in violation of the Sixth Amendment of the U.S. Constitution"; and (3) "Rudolph was deprived of effective assistance of counsel at trial and on direct appeal."
Petitioner now renews his quest for habeas corpus relief in this Court. He asserts ten grounds: (1) that the burglary statute is unconstitutionally vague; (2) that the information was unconstitutionally broad; (3) that some jury instructions were unconstitutionally vague; (4) lack of a unanimous jury; (5) denial of his right to self represent; (6) ineffective assistance of counsel at trial and on direct appeal; (7) double jeopardy; (8) insufficient evidence; (9) judicial bias; and (10) that false evidence and perjured testimony prejudiced him.
ANALYSIS I. Standard of Review
Section 2254, under which this habeas petition was filed, states in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2001).
Under § 2254(d)(1), this Court may grant habeas relief only when the state court has formed "a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of the petitioner's case." Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000)), cert. denied, 121 S.Ct. 2560 (2001). This is a deferential standard that does not allow a federal habeas court to issue a writ merely because it determines in its own view that the state decision at issue erroneously applied clearly established federal law. See id. "`Rather that [erroneous] application [of clearly established federal law] must also be unreasonable.'" Id. (quoting Williams, 120 S.Ct. at 1522). Moreover, federal courts must presume the correctness of state court factual findings. Id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2001)). Petitioner bears the burden of rebutting that presumption with clear and convincing evidence. See id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2001)).
Finally, "[i]t is . . . well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas."Williams, 120 S.Ct. at 1503. This Court must "give effect to state convictions to the extent possible under law." Id. at 1509. Still, "errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Id. at 1503.
II. Exhaustion and Procedural Default
The Court first analyzes Petitioner's issues to determine if they are unexhausted or procedurally defaulted. In general, before Petitioner may seek review of a Utah conviction in federal court, he must exhaust all available remedies in the Utah court system. See 28 U.S.C.A. § 2254(b) (c) (West 1994 Supp. 2003); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2 (10th Cir. Nov. 9, 1998). To exhaust his remedies, Petitioner must properly present to the highest available Utah court the federal constitutional issues on which he seeks relief. See Picard, 92 S.Ct. at 512-13; Knapp, 1998 WL 778774, at *2-3.
The Supreme Court has declared that when a petitioner has "`failed to exhaust his state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred' the claims are considered exhausted and procedurally defaulted for purposes of federal habeas relief."Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1 (1991)). Utah's Post-Conviction Remedies Act states, "A person is not eligible for relief under this chapter upon any ground that . . . was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief. . . ." Utah Code Ann. § 78-35a-106(1)(d) (1996); see also Monson v. State, 953 P.2d 73, 74 (Utah 1998) (referring to state law that "prevent[s] abuse of the judicial process by prisoners who `burden the courts and frustrate the ends of justice' by filing multiple habeas petitions for claims which could have been brought in a single petition" (citation omitted)); State v. Andrews, 843 P.2d 1027, 1029-30 (Utah 1992) ("`We are in accord with decisions of federal courts which hold that raising issues in a petition that were not but could have been raised in a previous petition, except where good cause is shown, constitutes an abuse of the writ and requires dismissal of the petition.'" (quoting Andrews v. Shulsen, 773 P.2d 832, 833-34 (Utah 1988))).
"This court may not consider issues raised in a habeas petition `that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.'" Thomas, 218 F.3d at 1221 (alteration omitted) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). A state court procedural bar is an "independent and adequate state procedural ground" for dismissal if it is "`strictly or regularly followed' and employed `evenhandedly to all similar claims.'" See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (quoting Hickman v. Sears, 160 F.3d 1269, 1271 (10th Cir. 1998)) (quotation omitted in original).
"The `cause and prejudice' standard applies to pro se prisoners just as it applies to prisoners represented by counsel. In order to satisfy the `cause' standard, Petitioner must show that `some objective factor external to the defense' impeded his compliance with Utah's procedural rules." Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (citations omitted).
"`[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.'" Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503 (1998) (citation omitted). To be plausible, an actual innocence claim must be grounded on solid evidence not adduced at trial. Id. Because such evidence is so rare, "`in virtually every case, the allegation of actual innocence has been summarily rejected.'"Id. (quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 866 (1995) (citation omitted)). Though demanding in every case, the exact range of the miscarriage-of-justice exception is conditioned upon the type of challenge posed by the habeas petitioner. Id. For instance, "[i]f the petitioner asserts his actual innocence of the underlying crime, he must show `it is more likely than not that no reasonable juror would have convicted him in light of the new evidence' presented in his habeas petition." Id. (quoting Schlup, 513 U.S. at 327)).
The Court concludes that seven of the grounds for relief raised by Petitioner are procedurally defaulted; therefore, the Court will not consider them unless Petitioner can show either "cause and prejudice" or a "fundamental miscarriage of justice." The procedurally defaulted grounds include the following arguments: (1) that the burglary statute under which Petitioner was convicted is unconstitutionally vague; (2) that the criminal information charging Petitioner was defective; (3) that the jury instructions were unconstitutionally vague; (4) that Petitioner was not convicted by a unanimous jury; (5) that Petitioner was denied the right to represent himself; (6) that Petitioner was denied effective assistance of counsel at trial and on appeal; and (7) that the judge who presided over the third trial should have disqualified himself for bias. Each of these grounds is analyzed below.
A. Grounds Not Previously Asserted
Two of the arguments raised by Petitioner in his current petition for writ of habeas corpus were never raised in the state courts. These include Petitioner's argument that the jury instructions given at trial were unconstitutionally vague, and the argument that Petitioner was denied a unanimous verdict. Although Petitioner has challenged the validity of the jury instructions in the state courts on other grounds, he has never before argued that they were unconstitutionally vague. Nor did Petitioner argue in the state courts that he was denied a unanimous verdict, although the basis for this argument, that the statute under which he was prosecuted is subject to multiple interpretations, was raised.
Petitioner failed to raise these arguments either in his direct appeal or in his state petition for post-conviction relief. Because these arguments could have been raised at the state level but were not, Plaintiff is now procedurally barred from asserting them in the state courts under Utah's Post-Conviction Remedies Act. This bar is an "independent and adequate procedural ground" for dismissal because it is regularly followed by Utah courts and is employed evenhandedly to all similar claims. Thus, the Court concludes that Petitioner's newly asserted grounds are procedurally defaulted for purposes of this petition. Plaintiff has not shown cause and prejudice regarding his failure to exhaust these grounds, nor has he argued that the Court's refusal to consider them will result in a fundamental miscarriage of justice. Accordingly, the Court rejects Petitioner's arguments that the jury instructions were unconstitutionally vague and that he was denied a unanimous guilty verdict.
B. Unconstitutionally Vague Statute
Petitioner asserts that the Utah burglary statute under which he was convicted is unconstitutionally vague. Under the statute a person is guilty of burglary if he "enters or remains unlawfully . . . with the intent to commit a felony, or theft or assault." Utah Code Ann. § 76-6-202 (1953) (emphasis added). Petitioner argues that under this definition it is unclear whether his conviction was based on unlawfully entering with intent to commit a crime or unlawfully remaining with intent to commit a crime. Petitioner failed to raise this argument on direct appeal but later asserted it in his state petition for post-conviction relief. The Utah Supreme Court determined that the argument was procedurally barred for failure to raise it on direct appeal. That bar relied on by the Utah Supreme Court is an "independent and adequate procedural ground" for dismissal of this claim by this court because the procedural bar is regularly followed by Utah courts and is employed evenhandedly to all similar claims.
Plaintiff has not shown any reason why the Court should consider this issue despite the fact that it has been procedurally defaulted. Plaintiff offers no explanation for his failure to raise this issue on appeal. There is also no indication that actual prejudice resulted from the way in which the challenged statute is worded. Finally, Petitioner cannot show that a fundamental miscarriage of justice will result from foregoing consideration of this issue. Therefore, the Court denies the petition for relief on this ground.
C. Information Overbreadth
Petitioner argues that he was denied due process because the Information under which he was charged was overly broad. This argument, like the one previously addressed, is based on the alternative "enters or remains unlawfully" language in the Utah burglary statute. Petitioner argues that the Information against him was overly broad because it did not specify precisely which aspect of the burglary statute he violated. Petitioner also alleges that the Information was defective because it used the term "sexual assault" when referring to the predicate offense for his burglary conviction, even though that term is not specifically defined in Utah statutes.
Petitioner did not argue the information was defective in either his appeal or state petition for post-conviction relief; however, on direct appeal Petitioner used essentially the same underlying arguments to challenge various jury instructions. The Utah Supreme Court did not address the merits of Petitioner's argument because it found that he had not preserved the right to appeal by objecting to the jury instructions at trial. In reviewing the jury instructions only for "manifest injustice" the Utah Supreme Court found that there was no "obvious error" and denied relief.
Plaintiff has not satisfied the exhaustion requirement with regard to his argument that the Information against him was unconstitutionally over-broad. Plaintiff has not properly presented this argument to the highest available Utah court. The mere fact that Petitioner used similar underlying arguments to appeal an entirely different aspect of his conviction does not satisfy the exhaustion requirement for this federal habeas petition. Thus, Petitioner's argument that the Information against him was unconstitutionally over-broad is procedurally defaulted. Plaintiff has not shown cause and prejudice regarding his failure to exhaust this argument, nor has he asserted that the Court's refusal to consider the argument could result in a fundamental miscarriage of justice. Therefore, the Court concludes that Petitioner is not entitled to relief on this ground.
D. Denial of Right to Self-Representation
Petitioner argues that he was denied due process because he was not allowed to represent himself during his third trial. Petitioner did not raise this issue on appeal but did assert it in his state petition for post-conviction relief. The Utah Supreme Court held that this issue was procedurally barred because it was not raised on direct appeal but could have been. The Utah Supreme Court also found that there were no unusual circumstances to justify Petitioner's failure to raise this issue on appeal. This Court concurs with that finding. Accordingly, Petitioner is not entitled to relief on the grounds that he was denied the right to represent himself.
E. Ineffective Assistance of Counsel
Petitioner alleges that he was denied effective assistance of counsel at trial and on appeal. Petitioner's current petition asserts numerous errors by counsel including failure to effectively cross-examine witnesses at trial to reveal perjury, and appellate counsel's refusal to argue judicial bias, structural errors, denial of right to self-represent, and prosecutorial misconduct. Although Petitioner filed pro se briefs on appeal he did not raise any of these arguments at that time. In his state post-conviction proceedings Petitioner argued only that his trial counsel failed to raise the issue of self-representation and that his appellate counsel failed to challenge Utah's burglary statute on vagueness grounds. The state courts found that Petitioner's ineffective assistance arguments were either waived or were frivolous.
This Court may not consider ineffective assistance of counsel arguments that have not been properly exhausted in the state courts unless Petitioner can show cause and prejudice or a fundamental miscarriage of justice. Cause for failure to raise ineffective assistance of counsel claims on appeal may be founded upon the fact that a petitioner was represented by the same counsel at trial and on appeal. However, in the present case Petitioner filed his own pro se briefs on appeal, thus there is no cause to believe that Petitioner was prevented by his appellate counsel from raising these issues. Petitioner was free to argue in his pro se appellate brief that his counsel was ineffective. Because Petitioner failed to do so, this argument is now procedurally barred in state court and defaulted for purposes of this federal petition. Accordingly, the Court denies Petitioner relief on ineffective assistance of counsel grounds.
F. Judicial Bias
Petitioner argues that he was denied due process because Judge Brian, who presided over his third trial, was biased and should have disqualified himself. Petitioner's primary ground for asserting judicial bias is the claim that Judge Brian, who declared a mistrial in the second trial, improperly presided over the third trial in which Petitioner was convicted. Addressing this argument on appeal the Utah Supreme Court found that Petitioner had waived his right to appeal this issue by expressly withdrawing his motion for recusal and requesting that the trial go forward with Judge Brian presiding. Petitioner's current petition also asserts that Judge Brian made biased remarks and was openly hostile toward Petitioner in the presence of the jury, however, these arguments were never raised either on appeal or in state post-conviction proceedings.
The Utah Supreme Court's determination that Petitioner waived his right to appeal based on judicial bias is a procedural bar. This bar is an "independent and adequate procedural ground" for dismissal because it is regularly followed by Utah courts and is employed evenhandedly to all similar claims. Accordingly, this Court may not consider Petitioner's judicial bias argument unless he can demonstrate cause and prejudice or a fundamental miscarriage of justice. Petitioner's mere allegations of bias are insufficient to show that he was actually prejudiced in any way. Neither do Petitioner's arguments show a fundamental miscarriage of justice because even if proven they would not tend to establish actual innocence. Thus, the Court denies Petitioner relief on his judicial bias argument.
III. Double Jeopardy
Petitioner asserts two ways in which his double jeopardy rights were violated: First, Petitioner was acquitted of aggravated sexual assault in his first trial, but then the State in a later trial presented evidence of that sexual assault in successfully convicting him of aggravated burglary. Second, Petitioner was put on trial for a third time, after his second trial ended in a mistrial allegedly caused by the judge's and prosecutor's bad-faith conduct.
The Double Jeopardy Clause of the Fifth Amendment states, "[N]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." This Clause guarantees three separate protections: "`"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."'" United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433 (1980) (citations omitted).
A. Aggravated Burglary Conviction
Petitioner's first trial resulted in his acquittal on the aggravated sexual assault charge and his conviction on the charges of aggravated burglary and violation of a protective order. After those convictions were reversed, Petitioner was retried for aggravated burglary and violation of a protective order. In proving an element of aggravated burglary at the later trial, the State put on evidence of Petitioner's intent to commit a sexual assault. Petitioner urges that a subset of double jeopardy protection — the doctrine of collateral estoppel — should have prevented the use of sexual assault evidence (the crime for which he had been acquitted) to prove that he was guilty of aggravated burglary.
The Utah Supreme Court addressed this very same argument on direct appeal, holding that the Double Jeopardy Clause was not violated. Because the supreme court's holding was an adjudication on the merits of this claim, Petitioner may gain relief only if he can show that the state court's adjudication "`resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'" or "was based on an unreasonable determination of the facts." Price v. Vincent, 123 S.Ct. 1848, 1852 (2003) (quoting 28 U.S.C.A. § 2254(d) (West Supp. 2003)).
First, a state court's decision is "contrary to" clearly established Supreme Court law "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [Supreme Court] precedent.'"Id. at 1853 (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20 (2000)). Here, the Utah Supreme Court recognized the relevant Supreme Court precedents, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970), and Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668 (1990), and "`reaffirm[ed] the principles articulated' in those decisions."Id. (citation omitted).
Moreover, the Utah Supreme Court properly observed Ashe by using Ashe's definition of collateral estoppel and applyingAshe's edict that when a prior acquittal was grounded on a general verdict, a reviewing court must evaluate the previous proceeding's record, "`taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" State v. Rudolph, 970 P.2d 1221, 1231 (Utah 1998) (quoting Ashe, 397 U.S. at 444). Mindful ofDowling's rule that Petitioner has the burden of showing that the issue was actually determined in his favor the first time around, Dowling, 110 S.Ct. at 673, and in keeping with Ashe, the Utah Supreme Court carefully reviewed the record from the first trial in determining that the issue of Petitioner'sintent to commit sexual assault was not necessarily decided by the jury in acquitting on the aggravated sexual assault charge.See Price, 123 S.Ct. at 1853. In concluding that collateral estoppel did not preclude Petitioner's aggravated burglary conviction, the Utah Supreme Court concluded that Petitioner's earlier aggravated sexual assault acquittal could have been based on failure of adequate proof on a different element of the crime — i.e., aggravating circumstances — unrelated to intent.
Nowhere did the Utah Supreme Court use a legal principle counter to those set forth in United States Supreme Court cases.See id. Further, the Utah court did not face factual circumstances materially indistinguishable from those found in any of the Supreme Court's "clearly established precedents."Id. Ashe had involved a robbery of six men at once. Ashe, 397 U.S. at 445-46. The defendant there was acquitted of robbing one of the men, but then later convicted for robbing another of the men. Id. at 446. In determining a violation of the Double Jeopardy Clause, the Court concluded that the second conviction necessarily involved a finding of ultimate fact opposite to that found in the first trial. Id. at 445. Meanwhile, in Dowling, the defendant was acquitted of a robbery; however, the victim of that robbery was allowed under Rule of Evidence 404(b), in a trial involving a second robbery, to testify regarding her description of the defendant in the first robbery and the defendant's association with another robber. Dowling, 493 U.S. at 345. The Dowling court determined the defendant was not in double jeopardy primarily because a different standard of proof exists for Rule 404(b) ("can reasonably conclude") than exists for conviction ("beyond a reasonable doubt"). Id. at 348-49.
Second, Petitioner can satisfy the federal standard of review here if he can show that the Utah Supreme Court's decision was "an `unreasonable application' of clearly established law."Price, 123 S.Ct. at 1853. It is well settled that "`"a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly."'" Id. (citations omitted) (alteration in original) July 18, 2003. Instead, the habeas applicant has the burden of showing that the state court applied Supreme Court law to his case "`"in an objectively unreasonable manner."'" Id. (citations omitted).
Petitioner has not met that burden here. As mentioned above, the Utah Supreme Court properly set forth the applicable Supreme Court precedent. Rudolph, 970 P.2d at 1231. The state court then went on to carefully analyze the precedent against the facts of Petitioner's case. Id. at 1231-32. The court initially examined the elements of sexual assault, then it reviewed the trial transcript from the first trial to determine whether the proof and arguments focused primarily on Petitioner's intent to commit sexual assault. Id. The court determined instead that the proof and arguments focused more on the aggravating circumstance element of sexual assault. Id. at 1232. Determining that Petitioner could not possibly "show that the jury necessarily acquitted him of aggravated sexual assault on the basis that he lacked the requisite intent" and may have acquitted him on the lack of aggravating circumstances, the state court held that "[c]ollateral estoppel . . . did not preclude his aggravated burglary conviction." Id.
This Court concludes that "[t]his was not an objectively unreasonable application of clearly established [Supreme Court] law." Price, 123 S.Ct. at 1854 (alterations emphasis in original). Moreover, even if this Court agreed with Petitioner that the Double Jeopardy Clause should be interpreted to preclude prosecution under these facts, "it was at least reasonable for the state court to conclude otherwise." Id.
Based on the above analysis, this Court rejects Petitioner's argument that his double jeopardy rights have been violated as to the use of sexual assault evidence in Petitioner's conviction on retrial of aggravated burglary.
B. Trial after Mistrial
Petitioner argues his double jeopardy rights were further violated when he was retried on the burglary and protective order charges after the trial judge had declared a mistrial in his second trial. Specifically, he contends that the trial judge and prosecutor forced the mistrial through their "bad faith conduct" by showing prejudicial bias and eliciting improper testimony from the victim.
As with the last issue, because the Utah Supreme Court adjudicated this issue against Petitioner on the merits, this Court is limited by § 2254(d) in its review of Petitioner's argument. See 28 U.S.C.A. § 2254(d) (West Supp. 2003). First, this Court must accept as true the state court's factual findings that neither the prosecution nor the trial judge intentionally provoked a mistrial, that the prosecutor's "prejudicial" questioning of the victim was in response to Petitioner "open[ing] the door" with his questioning, and that Petitioner had moved twice for mistrial before it was actually proclaimed. See Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003)). The Utah Supreme Court's opinion carefully reviews the trial court record in making that finding. And, Petitioner has not carried his burden of challenging that finding "with clear and convincing evidence." See id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003)). Except to contradict the supreme court's characterization of the record, he has suggested nothing whatsoever in the evidence that would put in question the supreme court's reasoned consideration of the transcripts. He has merely invited this Court to take an impermissible fresh look at the evidence.
The Court next considers whether the Utah Supreme Court's decision is "contrary to" clearly established United States Supreme Court precedent. See Price, 123 S.Ct. at 1853. The supreme court's analysis relied upon one of its own cases,State v. Trafny, 799 P.2d 704 (Utah 1990). See Rudolph, 970 P.2d at 1232. However, Trafny uses United States Supreme Court cases to support its double jeopardy discussion. See Trafny, 799 P.2d at 709 n. 22 (citing United States v. Dinitz, 424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079-80 (1971);United States v. Jorn, 400 U.S. 470, 484-85, 91 S.Ct. 547, 556-57 (1971)). In particular the Dinitz decision held that "`"where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error."'" Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2146 (1977) (quoting Dinitz, 424 U.S. at 607 (quoting Jorn, 400 U.S. at 485)). Having determined Petitioner moved for the mistrial and was not provoked by bad faith conduct of the judge or prosecutor, the Utah Supreme Court held that Petitioner waived his double jeopardy defense. Rudolph, 970 P.2d at 1232.
This Court concludes that the Utah Supreme Court did not unreasonably apply the relevant law, in keeping with United States Supreme Court precedent. Petitioner's double jeopardy argument based on his retrial after a mistrial thus fails.
IV. Insufficient Evidence
Petitioner next asserts that insufficient evidence existed to support his convictions. "[A] determination of a factual issue made by a State court shall be presumed correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003). Further, this Court may overturn state court factual findings only when they are unreasonable "in light of the evidence presented in the State court proceeding."See id. § 2254(d)(2).
Inasmuch as Petitioner's assertions can be read to question the validity of the state courts' interpretation of its own law, this Court declines to act. See Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 480 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
Again, Petitioner has not carried his burden of challenging the state court's findings "with clear and convincing evidence."See id. § 2254(e)(1). Apart from pointing out the little evidence that detracts from the jury's verdict, Petitioner has suggested nothing whatsoever in the record that would put in question the jury's reasoned evaluation of the evidence. Again, he has asked this Court to review the evidence anew. This Court is not authorized to do that and thus refuses Petitioner relief on the basis of insufficient evidence. See id. § 2254(d).
V. Prosecutorial Misconduct
Petitioner contends the prosecutor knowingly introduced false testimony. In particular, Petitioner asserts police officers gave false and contradictory statements about where a knife was found at the crime scene. The Utah Supreme Court addressed this issue on the merits, stating, "Despite Rudolph's assertion that he is the victim of a police conspiracy, the evidence simply does not support the same." Rudolph, 970 P.2d at 1233. The Court concluded that the testimony explaining the incongruity between police reports about the knife's location "was reasonable and was apparently believed by the jury." Id. This Court reviews Petitioner's contention under § 2254(d). See 28 U.S.C.A. § 2254(d) (West Supp. 2003).
The knowing use of false or perjured testimony is certainly unconstitutional. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397 (1976); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959). However, mere inconsistencies between testimonies do not show knowing use of perjured testimony. See United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002).
Petitioner has not shown by clear and convincing evidence as is his burden that the prosecutor knowingly introduced false evidence or perjured testimony. This Court will therefore not disturb the Utah Supreme Court's decision, which has not been shown to be based on an unreasonable determination of the facts nor contrary to clearly established federal law. See 28 U.S.C.A. § 2254(d) (West Supp. 2003).
CONCLUSION
Petitioner has alleged no valid grounds for federal habeas relief. IT IS THEREFORE ORDERED that Petitioner's habeas corpus petition under § 2254 is denied.
Petitioner has in recent weeks filed a spate of documents, court opinions in other cases, and letters, in which he has added to his legal analyses and raised other issues. The Court has reviewed all these materials and has concluded that they are either repetitive of Petitioner's arguments addressed in this order or, to the extent they can be deciphered at all, are unexhausted and procedurally barred claims.