Tomlin v. McKune, No. 07-3286., 11/13/08 - District’s court’s grant of habeas relief to state petitioner reversed. Defendant was charged in Kansas state court with one count of rape and one count of aggravated indecent liberties with a minor. As to the rape count, the jury was instructed on aggravated indecent liberties as a lesser included offense. The jury sent out a note indicating that was split on the rape count and asked for help in breaking the deadlock. The court gave a standard Allen charge and sent them back to deliberate further. The defense then moved for a mistrial, which the court took under advisement. The jury then sent out another note, stating that it had moved to 11-1 guilty on lesser charge, and further stating, “We have all agreed to Not Guilty to Count 1 Rape.” It also indicated that most jurors believed that further deliberations would not change the holdout’s mind. At that point, the state moved for a mistrial, which the judge declared. Defense counsel did not withdraw its mistrial motion, object to the state’s motion, or do anything at that time to try to confirm or formalize the apparent acquittal on the rape charge. A few days later, the defense filed a motion for judgment of acquittal on the rape charge, based on the note. The court denied the motion, holding that it was not clear whether the note reflected an actual acquittal, as opposed to being a compromise vote to bring deliberations to a close. The defendant was retried and was convicted of both of the original counts. He got almost 28 years on the rape count
From here, the case revolves around the concept of “partial verdicts.” Kansas has a procedural rule requiring the verdict form to be signed, and further requires the court to inquire of the jury if that is in fact their verdict. Beyond that, a Kansas case had adopted from a California case the rule that, in cases involving lesser included offenses, the jury has to be unanimous about something - guilty on the higher, guilty on the lesser, or not guilty. Absent unanimity on something, the defendant can be retried on the original charge.
The decision to declare a mistrial was affirmed on direct appeal because counsel consented to it and no verdict had been returned, so defendant could be retried on the rape count. Defendant then filed a state habeas on the grounds of ineffective assistance. He lost in the trial court, which was affirmed by the Kansas Court of Appeals (KCOA), because Kansas law barred partial verdicts, so counsel could not have been ineffective in failing to seek one. Then comes the federal habeas. The district court granted it, holding 1) the KCOA decision did not rest on an adequate and independent state law ground because the ban on partial verdicts was not regularly followed or firmly established in Kansas law, 2) trial counsel was ineffective because it was objectively unreasonable for counsel to consent to the mistrial and not move to publish the verdict of not guilty on the rape charge, or, in the alternative, that the Kansas decision was an unreasonable application of Strickland v. Washington, and 3) defendant was prejudiced by counsel’s deficient performance.
A majority of the 10th Circuit panel rejected all of these positions. It held first that the district court erred in essentially disregarding the KCOA’s ruling on Kansas law regarding partial verdicts. Next, applying AEDPA deferential review because the KCOA reached the merits of the Strickland claim, the 10th held that Kansas’s application of Strickland was reasonable, in that counsel was not deficient for not moving for something not recognized by state law or in failing to advance an argument for changing Kansas law, and because it is not clearly established by any Supreme Court holding that federal constitutional law compels the acceptance of partial verdicts in these circumstances, which, if that were the rule, would create a Fifth Amendment double jeopardy bar to retrial of the rape count..
Judge Holloway dissented. To him, defendant’s claim rests entirely on Strickland, which is by itself clearly established Supreme Court law, independent of any double jeopardy analysis. Viewed that way, any decent lawyer would have immediately tried to take advantage of what appeared to be a unanimous acquittal by at least trying to get formalized by insisting that the jury be polled. Failing to perceive the double jeopardy implications of inaction was professionally unacceptable. Judge Holloway found a very high likelihood that, had the jury been polled, its unanimity for acquittal, and the finality of that decision, would been confirmed.