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Moody v. Ryan

United States District Court, D. Arizona

August 28, 2017

Robert Joe Moody, Petitioner,
v.
Charles L. Ryan, Respondent.

          ORDER

          Honorable Lynette C. Kimmins, United States Magistrate Judge.

         Petitioner 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 the merits.

         FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner 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.)

         Upon 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.)

         Prior 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.)

         DISCUSSION

         The 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. § 2254(b)(2).

         Merits Analysis

         Pursuant 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.”

         First, 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.

         Second, 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.

         Petitioner 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).[1] 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).

         Petitioner's Motion for Leave to ...


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