Opinion
No. C 00-01132 CRB (PR)
August 8, 2001
ORDER
Now before the Court is petitioner's petition for a writ of habeas corpus. Having carefully considered the parties' papers, the petitioner's motion is hereby DENIED.
INTRODUCTION
On November 9, 1994, petitioner was charged with four counts: (1) possession of a firearm by a felon; (2) theft of a vehicle; (3) unlawful possession of a hypodermic needle or syringe; and (4) possession of methamphetamine for sale. On December 22, 1995, a jury found petitioner guilty of possession of a firearm by a felon and unlawful possession of a hypodermic needle or syringe and not guilty of vehicle theft. The jury sent a note to the trial judge stating that it could not reach a verdict on the charge of possession of methamphetamine for sale. Upon questioning the foreman, the trial judge was informed that the jury had taken three separate votes on the count in question with no change in the outcome. The judge declared a mistrial on the methamphetamine count and accepted the verdict as to the other three counts. During the sentencing hearing, the prosecutor moved and was granted dismissal of the methamphetamine charge because the state was satisfied that petitioner would serve time for the other convictions. Petitioner was nonetheless sentenced to 25 years to life under the Three Strikes Law because he was found to have suffered three prior "strike" convictions.
Petitioner appealed the judgment and the California Court of Appeal granted a retrial on January 22, 1997 for the gun possession charge. The court issued a remittitur that was filed in the Superior Court of California in and for the County of Marin. The prosecutor sought and received dismissal of the remittitur and filed a new complaint charging four counts: (1) receipt of stolen property (2) possession of firearm by a felon; (3) possession of methamphetamine for sale; and (4) possession of methamphetamine.
On October 10, 1997, a jury found petitioner guilty of possession of a firearm by a felon and for the lesser count of possession of methamphetamine. The court also found that the petitioner had suffered three prior "strike" convictions and served two prior prison terms. On December 4, 1997, he was sentenced for a total term of 52 years to life in state prison.
Petitioner unsuccessfully appealed his conviction to the California Court of Appeals and the Supreme Court of California. He then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Per order filed on July 24, 2000, the court found that petitioner stated three cognizable claims for relief: (1) violation of his right against double jeopardy; (2) prosecutorial vindictiveness; and (3) violation of his right to a speedy trial. The court ordered the respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed a response to all three claims and petitioner filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
On the evening of July 4, 1994, Deputy Salas was on routine patrol when she observed [petitioner] in a parked Datsun car in the parking lot of the Novato Motel. The driver's door of the car was open and [petitioner] was sitting in the driver's seat and appeared to be working on the car because Salas could see wires coming out of portions of the interior of the car. She drove past the car, took down the license plate number and radioed it in to dispatch to run a registration check. As she passed the car, she noticed that [petitioner] got out of the car and walked back towards the motel.
Salas received information that the license plate number of the car that she observed belonged to a Nissan car. She returned to the car to check the vehicle identification number with the information she had been given but found that it had been removed. Salas then radioed for a backup unit. While waiting for the unit to arrive, she went to the motel and spoke to the clerk. She described [petitioner] to the clerks and the clerk gave Salas a registration card for a room that identified [petitioner] as Douglas Tovaraz. Officer Dunn soon arrived on the scene and as Salas reported to him about the incident, she saw [petitioner] walk into the hotel lobby. [Petitioner] was now wearing a black trenchcoat that was buttoned from top to bottom. Salas and Dunn approached [petitioner] and inquired about the Datsun. [Petitioner] became agitated and angry and refused to give his name. Salas detained [petitioner] and conducted a pat-down search for a wallet. She removed a couple of plastic boxes, a coin purse, and a film canister from [petitioner's] trenchcoat before locating [petitioner's] wallet in his pants pocket. In the wallet, Salas found a note folded around a Visa card authorizing Douglas Hysell to use the card. Dunn recognized the name and ran it through dispatch. The dispatch operator informed Dunn that Hysell was wanted on a parole hold warrant. Dunn placed [petitioner] under arrest.
Deputy Gulbransen arrived on the scene and secured the Datsun. Gulbransen opened the driver's door to the Datsun and saw a firearm and a black pouch containing some ammunition in plain view behind the driver's seat. The firearm was a revolver loaded with .38 caliber ammunition.
During the booking process, Deputy Fritz found a hypodermic needle in [petitioner's] vest. [Petitioner] told Fritz, "I'll admit to the drugs but the car wasn't mine and the gun wasn't mine." In the film cannister removed from [petitioner] at the time of his arrest, Salas found five baggies containing methamphetamine. [Petitioner's] fingerprint was on one of the baggies. Inside the coin purse, Salas found six baggies of methamphetamine in a plastic container and a small spoon. Salas also found a plastic box wrapped in electrical tape that contained a large bag filled with methamphetamine. Two of the baggies contained methamphetamine weighing 6.18 and 8.09 grams, respectively. The other ten bags contained methamphetamine weighing from .55 grains to 1.52 grams. A special agent for the Bureau of Narcotics Enforcement testified that the methamphetamine found in [petitioner's] possession was for sale. He based his opinion on the amount and the way it was packaged. In a search of [petitioners] motel room, Salas found papers and a notebook with writings relate to the manufacture of methamphetamine. [Petitioner's] fingerprint was on one of the documents.
People v. Hysell, No. A084188, slip op. at 2-3 (Cal.Ct.App. Sept. 28, 1999).
DISCUSSION
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(I) resulted in a decision that was contrary to. or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "Under the `reasonable application clause.' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 1521.
In this circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert. denied. 121 S.Ct. 340 (2000).
I. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to he twice put in jeopardy of life or limb". U.S. Const. amend. v. In Benton v. Maryland, 395 U.S. 784 (1969), its protections were held applicable to the states through the Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second prosecution for the same offense after acquittal or conviction, and (2) multiple punishments for the same offense. See Witte v. United States, 515 U.S. 389, 395-96 (1995).
Petitioner contends that his conviction for methamphetamine possession violates the Double Jeopardy Clause for two reasons. First, the first trial for the methamphetamine charge improperly resulted in an mistrial because it was not based on legal necessity. Petitioner claims that the trial court's perfunctory examination of the jury foreman and failure to question individual jurors did not demonstrate that there was no reasonable probability that the jury could agree on a verdict. Second, after the trial judge declared a mistrial, the prosecutor's statement that she would not retry the methamphetamine charges barred any subsequent prosecution of those charges.
A. Whether Mistrial on the Methamphetamine Charge was Based on Legal Necessity
The decision to declare a mistrial is committed to the trial court's discretion. See Arizona v. Washington, 434 U.S. 497, 514 (1978). Upon declaration of a mistrial, retrial will only be permitted if the defendant consented to the mistrial or if the mistrial was caused by "manifest necessity." See id. at 505. Manifest necessity exists when the ends of public justice would not be served by a continuation of the proceedings. See United States v. Lun, 944 F.2d 642, 644 (9th Cir. 1991) (citing United States v. Jorn, 400 U.S. 470, 485 (1971)). Reviewing courts must afford considerable deference to the trial court's determination that manifest necessity warranted a mistrial. See Washington, 434 U.S. at 511. However, they cannot condone a trial judge who acted "irrationally or irresponsibly" in declaring a mistrial. Id. at 514. A state trial court's failure to exercise "sound discretion" in declaring a mistrial may be grounds for federal habeas relief under 28 U.S.C. § 2254 (d).
The California Court of Appeal rejected petitioner's contention that the trial court's mistrial declaration was not based on legal necessity. The court noted that if "the [trial] court determines that further deliberations are not reasonably likely to result in a verdict then legal necessity exists for a mistrial." People v. Hysell, No. A084188, slip op. at 3 (citing People v. Marshall, 13 Cal.4th 799, 825 (1996). Following the requirement that a trial judge f)robe the rigidity of the deadlock before discharging the jury, the appellate court found that the "trial court's questioning of the jury foreman adequately addressed whether further deliberations would be fruitful. Prior to declaring a mistrial, the court was assured that further instructions or review of testimony would not help the jury resolve its conflict and was informed that the jury had taken three votes on the count in question and that the numerical division among the jurors had not changed." id. at 5. The trial court, contrary to petitioner's suggestion, was not required to "question each individual juror as to the probability of a verdict." Id.
The California Court of Appeal did not err in rejecting petitioner's claim. Jury deadlock is a classic example of manifest necessity for a mistrial. Arizona v. Washington, 434 U.S. 497, 509 (1978). The trial judge's decision to declare a mistrial when he or she considers the jury deadlocked is accorded great deference by a reviewing court, because the trial judge is in the best position to assess the relevant facts. Id. at 509-10. These factors include the jury's collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has made a timely objection to the mistrial, and the effects of exhaustion or coercion on the jury. Rogers v. United States, 609 F.2d 1315, 1317 (9th Cir. 1979). A judge can appropriately determine that there is a manifest necessity for a mistrial by questioning only the jury foreman. Id.
Here, the trial judge received a note from the jury informing him that they were deadlocked and upon questioning the foreman, learned that three votes had been taken on the methamphetamine count without reaching a verdict. People v. Hysell, No. A084188, slip op. at 5. There is no requirement that each individual juror be polled before declaring a mistrial. Rogers, 609 F.2d at 1317. The Court of Appeal did not err in concluding that the trial court was justified in declaring a mistrial. Petitioner is not entitled to habeas relief on this claim.
B. Whether Retrial of the Methamphetamine Charge Was Barred by the Prosecutor's Motion for Dismissal After a Mistrial Was Declared
The California Court of Appeal also rejected petitioner's claim that a second trial for the methamphetamine charge was barred because the prosecutor informed the trial court that she did not intend to retry the charge. The Court of Appeal found the following:
A retrial was not barred under the circumstances presented here. It is well settled "that a trial resulting in conviction, followed by reversal on appeal for errors committed at the trial, does not bar a retrial. `He [the defendant who has appealed] does not gain immunity. for by successfully attacking the judgment he at least subjects himself to a retrial that may reach the same result.'" "[N]either a trial and reversal nor a dismissal nor the combination of them constitutes a bar to a new prosecution in a felony charge." Hence, while the prosecutor's comment was inept, it did not prevent a retrial of appellant on the charge here. The comment was premised on the assumption that appellant's aggregate sentence was sufficient to justify forfeiting a trial on the remaining charge of the information. When appellant appealed the conviction, however, he was again subject to retrial on the same offenses in the prior information. By exercising his right to appeal, appellant subjected himself to a retrial on the same offenses including the methamphetamine charge that was dismissed for legal necessity.
People v. Hysell, No. A084188, slip op. at 6-7 (internal citations omitted).
"Subsequent to the declaration of a mistrial for reasons which satisfy the `manifest necessity' standards of the Double Jeopardy Clause, the state can dismiss criminal charges without forfeiting the right to retry them." Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978). In Arnold, the state moved and received dismissal of robbery-assault charges against a defendant after the jury hung and the trial court declared a mistrial. Id. at 1380. The state claimed to be satisfied that the defendant would be incarcerated on murder charges. Id. When defendant appealed and obtained a retrial on the murder charge, the state also brought the robbery-assault charges in the second trial. Id. Ruling that this was not a violation of the Double Jeopardy Clause, the Ninth Circuit held that "[o]nce a mistrial had been fairly ordered the situation became analogous to the pretrial period in which the prosecutor has undisputed authority to dismiss the charges without fear of being prohibited from reasserting them by the Fifth Amendment." Id. at 1388.
The California Court of Appeal did not err in rejecting petitioner's claim of double jeopardy. Here, as in Arnold. the state initially chose not to retry the methamphetamine charges because petitioner had been convicted and would be serving time for possessing a firearm and a hypodermic needle. However, once petitioner obtained a retrial, the prosecutor was not barred from bringing the methamphetamine charge because a mistrial had been ordered with regards to that count. See id.
Petitioner is not entitled to habeas relief on this claim because the state court's rejection of his claim was not "clearly erroneous." Van Tran, 212 F.3d at 1159.
II. Prosecutorial Vindictiveness
Petitioner also seeks habeas relief based on the contention that his conviction for methamphetamine possession was the result of vindictive prosecution. Petitioner argues that the prosecutor acted vindictively in filing a new complaint following his successful appeal in which she charged him with possession of methamphetamine for sale, and with receipt of stolen property.
The California Court of Appeal rejected petitioner's claim of prosecutorial vindictiveness and found the following:
[In North Carolina v. Pearce, 395 U.S. 711, 715 (1969)], the United States Supreme Court held that a defendant, who was tried following a successful appeal, could not be held to a greater sentence than that initially imposed unless the record disclosed affirmative reasons based on objective information about the defendant's conduct after the original sentence to justify an increased sentence. Due process does not prohibit the possibility of increased punishment in all cases of retrial after appeal, but only those that pose a realistic likelihood of vindictiveness.
Here, however, the prosecutor sought to bring virtually the same charges that were the subject of the first trial. The exceptions were the [receipt] of stolen property charge, which the prosecutor explained was not brought earlier because the evidence to support the charge was not discovered until at least ten months after the preliminary examination on the original charges, and a lesser included offense of possession of methamphetamine. In any event, appellant was acquitted of the [receipt] of stolen property charge; hence any error in trying appellant on that charge was harmless. A rid, the trial court instructed on the lesser included offense of methamphetamine possession in the prior trial. Finally, the fact that appellant faced an increased sentence on retrial was not a result of the prosecutor's new information; appellant faced a similar penalty had be been convicted of the charges in the prior trial.
People v. Hysell, No. A084188, slip op. at 7-8 (internal quotation marks and citations omitted).
The California Court of Appeal correctly rioted that a prosecutor violates a defendant's due process rights only when she brings additional charges solely to punish the defendant for exercising a constitutional or statutory right. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The defendant has the burden in showing that "charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness." United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). The defendant must show that the prosecutorial conduct would not have occurred "but for" the prosecutor's "hostility or punitive animus towards the defendant because he has exercised his specific legal rights." Id. at 1168-69; see also United States v. Frega, 179 F.3d 793, 802 (9th Cir. 1999) (no vindictiveness where defendant could not show that but for animus prosecutor would not have filed superseding indictment).
The Court of Appeal did not err in rejecting petitioner's claim of prosecutorial vindictiveness when the methamphetamine charge was refiled. The charge was identical to that filed in the initial trial and therefore could not be considered "of increased severity." Gallegos-Curiel, 681 F.2d at 1168. The state retained the right to retry the methamphetamine charge after the trial judge declared a mistrial, thus there is no evidence of hostility or animus toward petitioner because he exercised his right to appeal his initial conviction. Because petitioner has not met his burden of showing that "but for" the prosecutor's hostility. the charge would not have been refiled, he is not entitled to federal habeas relief on this claim. Frega, 179 F.3d at 802. It certainly cannot be said, applying a definite and firm conviction standard. that the state court's decision was "clearly erroneous." Van Tran, 212 F.3d at 1159.
The court does not reach the issue of prosecutorial vindictiveness in connection with the charge of receipt of stolen property because petitioner was not convicted of receipt of stolen property. In any event, petitioner requests habeas relief as to the methamphetamine conviction only.
III. Sixth Amendment Right to a Speedy Trial
Petitioner contends that his statutory and constitutional rights to a speedy trial were violated because the prosecutor requested dismissal of the remittitur issued by the Court of Appeals and filed a new complaint that included new charges of methamphetamine possession and receipt of stolen property. The remittitur was filed in the superior court on March 27, 1997. Petitioner's trial began on September 29, 1997.
The California Court of Appeal rejected petitioner's claim:
Here, whether we consider [petitioner's state or federal constitutional claim that he was denied a speedy trial, his contention fails because [petitioner] has not shown prejudice resulting from any delay in bringing him to trial (citation omitted). While the trial was ultimately held almost six months after the filing of the remittitur in the superior court, [petitioner] fails to demonstrate any prejudice.
People v. Hysell, No. A084188, slip op. at 8-9 (citation omitted).
A speedy trial is a fundamental right guaranteed the accused by the Sixth Amendment to the Constitution and imposed by the Due Process Clause of the Fourteenth Amendment on the states. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). No per se rule has been devised to determine whether the might to a speedy trial has been violated. Instead, courts must apply a flexible "functional analysis," Barker v. Wingo, 407 U.S. 514, 522 (1972), and consider and weigh the following factors in evaluating a Sixth Amendment speedy trial claim: (1) length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Doggett v. United States, 505 U.S. 647, 651 (1992): The length of the delay is to some extent a triggering mechanism. Courts have generally found post-accusation delay presumptively prejudicial only when it approaches one year. Doggett, 505 U.S. at 652 n. 1.
The California Court of Appeal did not err in rejecting petitioner's claim. The court rejected petitioner's speedy trial claim because he failed to demonstrate prejudice. A Barker inquiry is triggered when the delay from the time the accused was charged to the time of trial becomes "presumptively prejudicial." Id. Petitioner does not have to demonstrate actual prejudice if the delay between the filing of the charge and the trial date is long enough to be considered "presumptively prejudicial." Here, the elapsed time of approximately six months from the time the remittitur was filed to the trial date does not cross this threshold. See id. (holding that presumptively prejudicial delays are generally considered to be approching a year). Thus, there is no need to proceed with a Barker inquiry because the delay was not unusual in any way. Unless there is some delay which is "presumptively prejudicial," there is no necessity for inquiry into the other factors. Doggett, 505 U.S. at 651-52. Because it cannot be said that the California Court of Appeal's decision was "clearly erroneous," petitioner is not entitled to habeas relief on his speedy trial claim. See Van Tran, 212 F.3d at 1159.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
IT IS SO ORDERED.
JUDGMENT
The Court having denied the petitioners petition for a writ of habeas corpus, it is hereby ORDERED that judgment be entered in favor of the respondent and against the petitioner.
The clerk is ORDERED to close the file.
IT IS SO ORDERED.