Opinion
Civil No. 02-40-AS
July 30, 2002
Richard L. Wolf, Portland, OR, Dennis N. Balske, Portland, OR, Attorneys for Petitioner.
Hardy Myers, Lynn David Larsen, Salem, OR, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 preventing the State of Oregon from trying Petitioner a third time on three charges of aggravated felony murder. Currently before the court is the petition for writ of habeas corpus (#1). For the reasons set forth below, the Petition should be GRANTED.
BACKGROUND
Petitioner was tried before a jury in 1993 in Multnomah County Circuit Court on a 15-count indictment. Counts 1, 2, and 3 charged aggravated felony murder, alleging petitioner personally and intentionally killed Misty Michelle Largo while in the course of kidnaping her. Count 4 charged aggravated murder in the course of intentional torture. Counts 5, 6, and 7 charged aggravated murder to conceal the commission of the three kidnaping counts. Count 8 charged aggravated murder for the purpose of concealing the commission of the co-defendant's sodomy of Ms. Largo. Count 9 charged aggravated murder to conceal the commission of assault in the third degree. Count 10 charged intentional murder. Counts 11, 12, and 13 charged three kidnaping theories (second degree kidnap, first degree kidnap for the purpose of terrorizing, and first degree kidnap for the purpose of causing physical injury). Count 14 charged assault in the third degree, and Count 15 charged aiding and abetting the abuse of a corpse.
Petitioner was convicted on all 15 counts, and judgments of death were entered on all nine aggravated murder theories. The intentional murder charge in count 10 merged with the aggravated felony murder count charged in count 1, as requested by the State in its sentencing memorandum. The judgments and sentences of death were automatically directly reviewed by the Oregon Supreme Court, which reversed and remanded for retrial on the nine aggravated murder counts and the one intentional murder count. The remaining convictions and sentences were affirmed.
Petitioner was tried before a jury a second time on the reversed aggravated murder and intentional murder charges. The aggravate murder charge in Count 8, based upon concealing the commission of sodomy, was dismissed prior to trial as petitioner's co-defendant had been acquitted of the charge of sodomy. To prevent a "gap" in the number of counts the jury would consider, the trial court re-numbered the intentional murder count from count 10 to count 9, and the aggravated murder count that was original count 9 was re-numbered to count 8. The remaining counts of aggravated murder (1-7) remained the same number in the retrial as they were in the original trial.
The second jury returned verdicts of not guilty on the charged offenses in counts 4 through 9, convicting petitioner instead of the lesser included offenses of attempted aggravated murder (counts 4 through 8) and attempted murder (count 9). The jury was unable to reach a verdict on counts 1, 2, and 3 (aggravated felony murder in the course of the three kidnaping theories). The jurors had been instructed by the trial court that they must "acquit first" on the charged offenses before considering any lesser included offenses.
The State of Oregon now seeks to re-try petitioner on the three aggravated felony murder counts on which the second jury was unable to reach a verdict. Petitioner filed a motion in the state trial court to bar his retrial on Fifth Amendment double jeopardy grounds. The motion was denied. Petitioner then sought a Writ of Mandamus from the Oregon Supreme Court on the same grounds, which was denied without opinion.
Petitioner filed this action on January 9, 2002. In his petition, he alleges the second jury's verdict of not guilty on the charge of intentional murder bars a retrial on the charges of aggravated felony murder.
In the petition, Petitioner also sought expedited consideration of a stay of the state court proceedings pending disposition of this action. The need for a stay from this court was mooted, however, when the state trial judge entered such an order.
JURISDICTION
Petitioner exhausted his state remedies on his double jeopardy claim by moving to bar a retrial and by seeking a Writ of Mandamus from the Oregon Supreme Court. Accordingly, this court has jurisdiction to consider the petition for writ of habeas corpus under 28 U.S.C. § 2254. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992) (citing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-03 (1984)), cert. denied, 506 U.S. 1048 (1993).LEGAL STANDARDS
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
A state court acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000); Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119-20 (2000); Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.), cert. denied, 531 U.S. 944 (2000).
An "unreasonable application of clearly established Federal law" occurs if the state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 120 S.Ct. at 1523; Ramdass, 120 S.Ct. at 2120; Tran, 212 F.3d at 1120. Under this standard of review, a federal court may not issue a writ simply because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly. Williams, 120 S.Ct. at 1522. Rather, in order for a state court's application of federal law to be unreasonable, it must have been clearly erroneous. Tran, 212 F.3d at 1153.
Where a state court does not articulate a rationale for its determination, a review of that court's application of clearly established law is difficult. As the Ninth Circuit explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delcrado v. Lewis, 223 F.3d 976, 982 (2000) (citation omitted).
DISCUSSION
Petitioner contends the State cannot retry him on the three aggravated felony murder charges because a retrial would violate the Double Jeopardy Clause. Because the jury in the second trial had a full opportunity to convict of aggravated felony murder and the jury returned no such verdict, instead acquitting on other theories of aggravated murder and on the lesser included offense of intentional murder, petitioner argues that collateral estoppel bars retrial on the aggravated felony murder charges.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution declares that no person shall ". . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const., Amendment V. This constitutional prohibition "was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offence." Green v. United States, 355 U.S. 184, 187 (1957)
The underlying policy, deeply ingrained in our 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." Green, 355 U.S. at 187-188. In furtherance of this policy, "it has long been settled . . . that a verdict of acquittal is final, ending a defendant's jeopardy, and even when `not followed by any judgment, is a bar to a subsequent prosecution for the same offence.'" Id. (quoting Ball v. United States, 163 U.S. 662, 671 (1896)). Neither a jury's failure to reach a verdict, nor a trial court's declaration of a mistrial following a hung jury, however, is an event that terminates jeopardy so as to bar a second trial on the mistried charges. Richardson v. United States, 468 U.S. 317, 325 (1984).
The doctrine of collateral estoppel or issue preclusion was first incorporated as a component of double jeopardy protection in Ashe v. Swenson, 397 U.S. 436 (1970). In constitutionalizing the doctrine of issue preclusion as encompassed within the Double Jeopardy Clause, the Supreme Court held 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 lawsuit." Ashe, 397 U.S. at 443. To assess a claim of issue preclusion where acquittal was based upon a jury's general verdict, the Court specified that a reviewing court must:
[E]xamine the record of a prior proceeding, 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. . . . [The inquiry] must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.
Id. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)). The petitioner bears the burden of showing "that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Dowling v. United States, 493 U.S. 342, 350 (1990).
In Ashe, the defendant was charged with robbing one of six men at a poker game. The evidence that Ashe was actually one of the robbers was weak, and the jury acquitted him. In a subsequent trial for the robbery of another of the six poker players, this time with stronger identification evidence, Ashe was convicted. The Supreme Court overturned the conviction as barred by the collateral estoppel component of double jeopardy, concluding that the "single rationally conceivable issue in dispute [in the first trial] was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not." Id. at 445. "Because the first jury had found that Ashe had not been present at the robbery, the only way he could be convicted was if the second jury found directly to the contrary. Consequently, the collateral estoppel rule prohibited his second prosecution." Charles v. Hickman, 228 F.3d 981, 985 (9th Cir. 2000) (citing Ashe, 397 U.S. at 446-47).
Upon a review of petitioner's second trial, taking into account "the pleadings, evidence, charge, and other relevant matter," a rational jury could not have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.
Under Oregon law, intentional murder is a true lesser included offense of aggravated felony murder. Intentional Murder is defined under Ore. Rev. Stat. 163.115 as:
As petitioner notes, intentional murder is not the sole lesser included offense to aggravated felony murder. Indeed, the jury in petitioner's second trial was instructed on the lesser included offense of felony murder.
(1) Except as provided in Ore. Rev. Stat. 163.118 [first-degree manslaughter] and 163.125 [second-degree manslaughter], criminal homicide constitutes murder:
(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;
(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:
* * *
(E) kidnaping in the second degree;
(F) kidnaping in the first degree.
Aggravated Murder is defined in Ore. Rev. Stat. 163.095, which reads:
As used in Ore. Rev. Stat. 163.105 and this section, "aggravated murder" means murder as defined in Ore. Rev. Stat. 163.115, which is committed under, or accompanied by, any of the following circumstances:
* * *
(2)(d) Notwithstanding Ore. Rev. Stat. 163.115(1)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in Ore. Rev. Stat. 163.115(1)(b)
As the Oregon Court of Appeals stated, albeit in dicta, "an intentional murder committed during the course of a qualifying felony constitutes a single offense of aggravated murder, rather than two separate crimes of intentional murder and felony murder." State v. Beason, 170 Or. App. 414, 430, 12 P.3d 560, 569 (2000), rev. denied, 331 Or. 692, 26 P.3d 149 (2001). This conclusion is consistent with Blockburger v. United States, 284 U.S. 299, 304 (1931), in which the Supreme Court stated "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."
Moreover, the trial court recognized this in petitioner's first trial, when the sentence for the intentional murder conviction was merged (at the State's urging), with the sentences for the first aggravated felony murder charge.
Addressing the Blockburger test in the context of a double jeopardy argument, the Supreme Court stated:
If the two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nelsen, 131 U.S. 176, 1870-88 (1889); cf. Gavieres v. United States, 220 U.S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless `each statute requires proof of an additional fact which the other does not,' Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.
Brown v. Ohio, 432 U.S. 161, 166 (1977).
In order to prove petitioner is guilty of the three aggravated felony murder charges upon which the second jury was unable to reach a verdict, the State must establish beyond a reasonable doubt the elements of intentional murder. See Santamaria v. Horsley, 133 F.3d 1242, 1247 (9th Cir.) (discussing Dowling, 493 U.S. at 348-49), cert. denied, 525 U.S. 824 (1998). The second jury, however, given the opportunity to do so, specifically acquitted petitioner of intentional murder. In reaching the verdict of acquittal of intentional murder, and guilt on the lesser included attempted intentional murder, a rational jury could not have grounded its decision upon an issue other than that which petitioner seeks to foreclose from consideration upon retrial. As such, a retrial of petitioner on the three aggravated felony murder charges would violate petitioner's rights under the Double Jeopardy Clause.
Upon an independent review of the state record, the state trial court's denial of petitioner's motion to bar his retrial and the Oregon Supreme Court's denial of petitioner's Writ of Mandamus were an unreasonable application of clearly established federal law as established by the Supreme Court, and are not entitled to deference under 28 U.S.C. § 2254. Accordingly, for the reasons set forth above, the Petition for Writ of Habeas Corpus (#1) should be GRANTED, and a writ should be issued forever preventing the retrial of petitioner on the three counts of aggravated felony murder.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due August 16, 2002. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than September 3, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.