United States District Court, D. Arizona
Honorable Lynette C. Kimmins, United States Magistrate Judge.
Robert Joe Moody has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Before the Court
are the Petition (Doc. 1), Respondent's Answer (Doc. 13),
and Petitioner's Reply (Doc. 22). Petitioner also filed a
Motion for Leave to File Additional Materials. (Doc. 24.) The
parties have consented to Magistrate Judge jurisdiction.
(Doc. 6.) The Court finds the Petition should be dismissed on
AND PROCEDURAL BACKGROUND
was convicted in the Pima County Superior Court on two counts
of first degree murder in 1995 and sentenced to death. (Doc.
13-1 at 3-4.) On appeal, the Arizona Supreme Court reversed
Petitioner's convictions based on the trial court's
denial of Petitioner's motion for change of counsel.
(Id. at 6.) Petitioner again was convicted following
a second trial and sentenced to death. (Id. at 25.)
Petitioner's automatic appeal to the Arizona Supreme
Court, Petitioner argued, in part, that his retrial was
barred on double jeopardy grounds based upon prosecutorial
misconduct in the first trial. (Id. at 27.) The
appellate court found that Petitioner had neither moved for a
mistrial based on prosecutorial misconduct during the first
trial nor filed a special action seeking review of the trial
court's denial of his motion to dismiss based on double
jeopardy before the second trial. (Id. at 27-28.)
Therefore, the court held the double jeopardy claim was not
preserved for appeal and declined to address it.
(Id. at 28.) However, the court vacated
Petitioner's death sentence. (Id. at 53-56
(citing Ring v. Arizona, 536 U.S. 584 (2002).)
Petitioner was resentenced to consecutive life terms. (Doc.
13-2 at 3.) His subsequent appeal was unsuccessful.
(Id. at 2-24; Doc. 13-3 at 2.)
to the conclusion of Petitioner's resentencing appeal, he
filed a timely Post-conviction Relief (PCR) Notice. (Doc.
13-3 at 4-5.) In the PCR Petition, Petitioner argued, in
part, that his retrial was barred on double jeopardy grounds
based upon prosecutorial misconduct. (Id. at 8-16.)
The PCR court held the claim was precluded because it
previously had been raised and adjudicated on appeal.
(Id. at 69.) The Court of Appeals granted review but
denied relief, agreeing the claim was precluded.
(Id. at 87-90.)
Petition raises a single two-part claim that double jeopardy
was violated by retrial because, in the first trial, there
was prosecutorial misconduct and insufficient evidence of
guilt. (Doc. 1.) Respondents contend the claim is
procedurally defaulted. The Court finds this claim is most
expeditiously resolved on the merits. See 28 U.S.C.
to the Double Jeopardy Clause of the United States
Constitution's Fifth Amendment, “No person shall be
subject for the same offence to be twice put in jeopardy of
life or limb.”
Petitioner alleges his retrial was barred on double jeopardy
grounds due to prosecutorial misconduct that occurred in the
first trial. The Supreme Court has spoken on this point,
holding that retrial is barred by double jeopardy only in
“those cases in which the conduct giving rise to the
successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.” Oregon v.
Kennedy, 456 U.S. 667, 679 (1982). Here, regardless of
whether Petitioner made several motions for mistrial as he
alleges, he cannot find relief under the Kennedy
holding. Petitioner's first trial did not end in a
mistrial but in a conviction; therefore, Petitioner never
obtained the “successful motion for mistrial”
upon which the Kennedy holding relies.
Petitioner argues his retrial was barred because the
prosecution presented insufficient evidence of guilt at the
first trial. The Supreme Court also has addressed directly
whether insufficiency of evidence may be used as a means to
bar retrial on double jeopardy grounds. The Court held that
the Double Jeopardy Clause “may preclude a second trial
once the reviewing court has found the evidence legally
insufficient.” Burks v. United States, 437
U.S. 1, 18 (1978). However, the Court specifically
distinguished instances in which the appellate court found
that the evidence presented was legally insufficient from
instances where trial error provoked a reversal on appeal.
Id. at 15. The Court held that the Double Jeopardy
Clause “does not preclude the Government's retrying
a defendant whose conviction is set aside because of an
error in the proceedings leading to
conviction.” Id. at 14 (quoting United
States v. Tateo, 377 U.S. 463, 465 (1964)). Here, no
such insufficiency of evidence determination was made on
appeal; rather, the Arizona Court of Appeals granted relief
solely on an issue relating to appointment of counsel. (Doc.
13-1 at 4 (declining to reach any other issues).) Therefore,
Petitioner is not entitled to relief under Burks.
has cited a number of Arizona court cases analyzing
prosecutorial misconduct's effect on retrial in light of
the Double Jeopardy Clause. See Pool v. Superior
Court, 677 P.2d 261, 270-72, 139 Ariz. 98, 107-09
(1984); State v. Jorgenson, 10 P.3d 1177, 198 Ariz.
390 (2000); State v. Minnitt, 55 P. 774, 783, 203
Ariz. 431, 440 (2002). However, each of these cases was decided
based upon Arizona's Double Jeopardy Clause. In fact, in
Pool, the Arizona Supreme Court rejected the
standard set forth in Oregon v. Kennedy. 677 P.2d at
271, 139 Ariz. at 108. These cases, based on the state
constitution, provide no support for Petitioner's federal
Petition because this Court may grant relief only under
federal law. See 28 U.S.C. § 2254(a).
Motion for Leave to ...