Gregory Paul Wilson v. Stan Czerniak, Superintendent Oregon State Penitentiary

355 F.3d 1151, 2004 U.S. App. LEXIS 745, 2004 WL 77895

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2004
• Docket: 02-36121
• Status: Published

Opinions

FERGUSON, Circuit Judge.

Gregory Paul Wilson (“Wilson”) appeals the District Court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus to prevent the State of Oregon from retrying him on three counts of aggravated felony murder. We have jurisdiction over his appeal under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We hold that the Fifth Amendment Double Jeopardy Clause prohibits Wilson’s retrial because he has already been tried, and acquitted, of a lesser included offense of the charges on which the State now seeks to reprosecute him. Accordingly, we reverse the District Court and grant Wilson’s petition for a writ of habeas corpus.

I. Background and Procedural History

A. Wilson’s First Trial

In 1993, Wilson first stood trial in Mult-nomah County Circuit Court, in Oregon, for the kidnapping and murder of Misty Largo. He was convicted on all fifteen counts of the indictment: aggravated murder (counts 1-9), intentional murder (count 10), kidnapping (counts 11-13), assault (count 14), and abuse of a corpse (count 15).

At sentencing, the State advised the trial court that the intentional murder charge in count 10 merged with all nine counts of aggravated murder. The trial court then ordered that the intentional murder charge in count 10 be merged with the first count for aggravated felony murder. Wilson was sentenced to death on all nine aggravated murder counts.

The Oregon Supreme Court reviewed the convictions pursuant to Oregon law requiring automatic and direct review of all death sentences. The Court overturned Wilson’s convictions on counts 1 through 10(aggravated murder and intentional murder) but affirmed his convictions on the remaining offenses. State v. Wilson, 323 Or. 498, 918 P.2d 826 (1996).

B. Wilson’s Second Trial

Wilson’s retrial on the convictions overturned by the Oregon Supreme Court proceeded in August 2000.¹ At that trial, the jury acquitted Wilson on counts 4-8 (aggravated murder) and count 9 (intentional murder).² Despite acquitting Wilson for intentional murder, the jury hung on the greater counts of aggravated felony murder (counts 1-3). At the same time, the jury convicted Wilson on five counts of attempted aggravated murder, which were charged as lesser included offenses to counts 4 through 8, and on attempted murder, a lesser included offense to count 9.

Following the jury’s decision, Wilson moved for a judgment of acquittal on the three hung counts of aggravated felony murder and asked the trial court to bar reprosecution on those counts. He argued that as he had been acquitted of intentional murder (count 9), he necessarily had to be acquitted of aggravated felony murder, which by definition subsumed intentional murder. Wilson contended that although the State generally can retry a defendant on counts which result in a hung jury, in this case, the jury’s separate not guilty verdict on intentional murder foreclosed further prosecution on the hung counts of aggravated felony murder. The trial court denied the motion for judgments of acquittal and ruled that the State could retry Wilson on counts 1-3.

In rejecting Wilson’s argument that he could not be retried for aggravated felony murder because the jury had acquitted him of intentionally killing Largo, the trial judge appeared to attach significance to the fact that the jury had found him guilty of attempted aggravated murder and attempted murder. In a hearing on the matter, the court commented:

My issue brings me back to what of Counts 1, 2, and 3 can be tried? Because I can say to defense counsel they did find him guilty of Attempted Aggravated Murder, which also requires an intentional act, and I still am uncertain whether or not the state would be bound to not prosecute on anything above the Attempt and/or the Felony Murder.

While the trial judge issued an order permitting retrial on the hung counts, she also held open the possibility that principles of collateral estoppel might prevent the State from ultimately charging those offenses.

Right now, I’m ordering counts 1, 2, and 3 to be tried, but you need to look at this.

I have not and cannot possibly, at this stage, based upon what we’re saying, make the kinds of intimate evidentiary

rulings. I can see us getting to the end of the state’s case in chief and the court not being able to submit all the charged offenses.

Wilson then petitioned the Oregon Supreme Court for an alternative writ of mandamus on state law and federal constitutional grounds, invoking his Fifth Amendment right to protection from double jeopardy. The Oregon Supreme Court denied his petition without opinion.

C. Federal Court Proceedings

Wilson then petitioned for a writ of ha-beas corpus from the United States District Court for the District of Orfegon seeking to bar reprosecution of the charges of aggravated felony murder on double jeopardy grounds. The U.S. Magistrate Judge recommended granting the petition on the basis that collateral estoppel prohibited the State from relitigating the question of intent to kill, which had already been resolved in Wilson’s favor. Wilson v. Czerniak, 2002 WL 1774745, at *3, 2002 U.S. Dist. LEXIS 14899 at * 14-16 (D.Or., July 30, 2002).

The District Court rejected the Magistrate Judge’s Findings and Recommendations. Wilson v. Czerniak, 238 F.Supp.2d 1207 (D.Or.2002). The Court, also focusing on the collateral estoppel prong of Wilson’s double jeopardy claim, noted that the jury’s acquittal on intentional murder and failure to reach a decision on aggravated felony murder were inconsistent responses to the question of whether Wilson intentionally murdered Largo. Id. at 1214. Where a jury reaches inconsistent results, the Court held, it was not an “unreasonable application” of clearly established Supreme Court law for the State Court to refuse to apply collateral estop-pel. Id. at 1212-16. Thus, the District Court dismissed the habeas petition.

II. Discussion

A. Standard of Review

We review de novo the District Court’s decision to deny a 28 U.S.C. § 2254 habeas petition. Killian v. Poole, 282 F.3d 1204, 1207 (9th Cir.2002).

Federal courts may not issue a habeas writ on the basis of any claim adjudicated on the merits in State Court unless the State Court decision was “contrary to,” or involved an “unreasonable application” of, “clearly established Federal law, as determined by the Supreme Court,” or resulted from an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); § 2254(d)(2).

Where a State Court does not provide a rationale for its decision, this Court reviews the record to determine whether the State Court’s decision contravened, or unreasonably applied, clearly established law. Delgado v. Leivis, 223 F.3d 976, 981-82 (9th Cir.2000). We do not independently decide the contested legal question, but focus on whether the State Court decision should be reversed under the § 2254 standard. Id. at 982.

B. Double Jeopardy Claims

On appeal, Wilson contends that under clearly established federal law, his acquittal on intentional murder: (1) prohibits a subsequent prosecution of aggravated felony murder because intentional murder is a lesser included offense of that crime; (2) results in collateral estoppel barring a retrial on charges that would require finding that he intentionally murdered the victim; (3)results in an “implied acquittal” on the greater inclusive offense of aggravated felony murder. Because we grant relief on Wilson’s first theory of double jeopardy, we do not reach his collateral estoppel or implied acquittal claims.

1. Double Jeopardy Law

The Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. In determining whether to characterize two charges as the “same offense” triggering Fifth Amendment double jeopardy, or as two separate offenses, courts use the definition set forth in Blockburger v. United States: “the test to be applied ... is whether each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Where each offense requires proof of at least one unique element, there are two offenses, but where all the elements of one crime are included in the definition of another crime, the two charges represent the “same offense” under the Double Jeopardy Clause.

Well-settled Supreme Court precedent provides that a criminal defendant may not be retried for a crime following an acquittal or conviction on a lesser included or greater inclusive offense. In Brown v. Ohio, the Court barred a defendant’s re-prosecution for auto theft following a conviction for the lesser included offense of joyriding. 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Stating that the Blockburger test applied as much to successive prosecutions as to cumulative punishments from a single trial, id. at 166, 97 S.Ct. 2221, the Court found that since the Ohio statutory definition of auto theft included every element of joyriding, the defendant could not be tried successively on the two charges. Id. at 168, 97 S.Ct. 2221.

The Supreme Court has consistently held that under the Double Jeopardy Clause, an acquittal on one offense bars a retrial on the “same offense” as defined in Blockburger. It cannot be seriously questioned that this principle constitutes “clearly established” Supreme Court law for purposes of habeas review. See, e.g., United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (noting that Blockburger analysis as a test for determining whether the Double Jeopardy Clause bars multiple trials “has deep historical roots and has been accepted in numerous precedents of this Court.”).

2. Intentional Murder as a Lesser Included Offense

Here, Wilson faces reprosecution for aggravated felony murder although he has already been tried, and acquitted, for intentional murder. Intentional murder is a lesser included offense of aggravated felony murder. Under Oregon law, a charge of intentional murder requires that a person: 1) without justification or excuse; 2) causes the death of another human being; and that 3) the homicide is “committed intentionally.” OR. REV. STAT. § 163.005(1) (1991); OR. REV. STAT. § 163.115(1)(a) (1991).

Aggravated felony murder requires that a person: 1) without justification or excuse; 2) causes the death of another human being; 3) “personally” commits the homicide; 4) “intentionally” commits the homicide; 5) commits or attempts to commit a crime listed in OR. REV. STAT. § 163.115(l)(b);and 6) in the “course of and in furtherance of the crime,” or “during the immediate flight therefrom”; 7) causes the death of a person other than one of the participants. OR. REV. STAT. §§ 163.005(1); 163.095(2)(d); 163.115(l)(b) (1991).

Because intentional murder does not require proof of any element not contained within aggravated felony murder, it is a lesser included offense of the latter. The fact that intentional murder was charged separately as a “stand-alone charge” in count 9, and not submitted specifically as a lesser included offense to any of the three aggravated murder charges, does not make a constitutionally relevant difference. Furthermore, the State itself has previously acknowledged that aggravated murder subsumes the elements of intentional murder: At the sentencing hearing following Wilson’s first trial, the State recommended that the intentional murder count merge with each of the aggravated murder counts, including counts 1-3. In making that recommendation, the State of Oregon applied a merger test identical to the Blockburger test. The State does not now contest — as it cannot— Wilson’s characterization of intentional murder as a lesser included offense of aggravated felony murder.

Instead, the State urges that we reject Wilson’s double jeopardy claim because of the Supreme Court’s holding that a hung jury does not foreclose retrial on the unresolved counts. Richardson v. United States, 468 U.S. 317, 325-26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In Richardson, the defendant was tried for three narcotics violations and was acquitted on one count, with the jury unable to reach a decision on the other two counts. 468 U.S. at 318-19, 104 S.Ct. 3081. The petitioner argued that the government could not retry him on the two hung counts because it had failed to establish his guilt beyond a reasonable doubt at the first trial. Id. at 322-23, 104 S.Ct. 3081. Rejecting that claim, the Court confirmed that the declaration of a mistrial following a hung jury “is not an event that terminates the original jeopardy to which petitioner was subjected.” Id. at 326, 104 S.Ct. 3081.

Applying Richardson, the District Court summarily rejected Wilson’s argument that his prior acquittal on intentional murder barred retrial for aggravated felony murder. In doing so, the Court misapplied the law. Richardson involved separate and unrelated offenses and raised no Blockburger issue. By contrast, Wilson’s retrial on the hung counts is barred not because he has already stood trial on those charges, but because he has been acquitted of a separate lesser included offense. Wilson’s claim of “original jeopardy” rests entirely on the intentional murder acquittal, a charge on which jeopardy properly attached and terminated.

This analysis does not create an “exception” to Richardson, as the dissent suggests. We adhere fully to the Richardson rule that a hung jury does not terminate jeopardy on the unresolved counts. Here, jeopardy plainly did not terminate on the three hung counts in Wilson’s trial. However, jeopardy has terminated on intentional murder. It is that termination of jeopardy which constitutes the “original jeopardy” that bars the “double jeopardy” presented by a retrial. The dissent’s failure to recognize this distinction leads it to misapply Richardson.

Nor does the fact that the Supreme Court has not ruled on the exact fact pattern of this case prevent us from granting relief. For us to overturn a state court decision on habeas review, the Supreme Court need not have addressed a factually identical case so long as it has clearly determined the applicable law. Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir.2000). It is not surprising that the Supreme Court has not addressed a factually similar case, especially because juries do not often acquit on one count and then hang on greater inclusive offenses in the same trial. The unusual circumstances of this case, however, do not discharge a state court from its obligation to reasonably apply existing Supreme Court precedent, nor do they paralyze our ability to overturn a state court’s unreasonable application of that law.

The dissent, like the District Court, would also deny relief based on United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). In Powell, the Supreme Court ruled that a criminal defendant could not upset a conviction because it was inconsistent with an acquittal on another count at the same trial. Id. at 64-69, 105 S.Ct. 471. The Court stated that an inconsistent verdict did not necessarily represent a “windfall” to the government but might have resulted from “mistake, compromise, or lenity” favoring the defendant. Id. at 65, 105 S.Ct. 471. The Court further rejected the argument that an acquittal on one count should collaterally estop a finding of guilt on a compound offense, stating that collateral estoppel is based on the assumption that the jury acted rationally. Id. at 68, 105 S.Ct. 471.

Here, we grant relief not because the jury’s conclusions were inconsistent, nor based on principles of collateral estoppel, but because a retrial for aggravated felony murder would subject Wilson twice to jeopardy for the same offense. Powell concerned a single trial, and simply did not address whether or not a defendant can be retried on a charge after he has already been acquitted of a separate lesser included offense. The Powell rule that collateral estoppel does not apply where a jury result is inconsistent might bear on Wilson’s second claim for relief, predicated on collateral estoppel. We do not need to reach that question, however, as we have already concluded that Wilson’s reprosecution violates the Double Jeopardy Clause because aggravated felony murder is a greater inclusive offense of intentional murder. The dissent’s lengthy disquisition on Powell deals exclusively with the collateral estop-pel element of the Double Jeopardy Clause. Powell did nothing, however, to eliminate a defendant’s protection from double jeopardy resulting from a successive prosecution for the same offense.

We hold that the State Court’s decision permitting Wilson’s retrial unreasonably applied clearly established Supreme Court precedent. Having once been acquitted of the lesser included offense of intentional murder, Wilson may not be retried on charges of aggravated felony murder. In double jeopardy cases, the constitutional harm to be avoided is the retrial itself, not just a conviction or sentence resulting from that trial. Price v. Georgia, 398 U.S. 323, 331, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Consequently, double jeopardy claims present an exception to the general rule requiring federal courts to abstain from interfering with pending state proceedings. Marines v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992). Therefore, we REVERSE the denial of Wilson’s habeas corpus petition and direct the District Court to grant his petition.

1 . Count 8 of the original ten reversed counts was dismissed before trial, so Wilson was retried on nine of the original ten counts. The original count 9 was renumbered as count 8, and the original count 10(intentional murder) was renumbered as count 9.

2 . The dissent reproduces at length the District Court’s summation of the prosecution evidence presented at Wilson’s trial. The recitation of the grisly details, however, does not change the fact that the jury acquitted Wilson of intentional murder as well as of five counts of aggravated murder.