Anderson v. Mullin

• Decision Date: 25 April 2003
• Docket Number: No. 01-5181.,01-5181.
• Citation: 327 F.3d 1148
• Parties: Darron B. ANDERSON, a/k/a Damon Anderson, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

327 F.3d 1148

Darron B. ANDERSON, a/k/a Damon Anderson, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 01-5181.

United States Court of Appeals, Tenth Circuit.

April 25, 2003.

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Darron B. Anderson, pro se.

Michael A. Rollin (Timothy M. Hurley, with him on the briefs), Denver, CO, appearing for Petitioner-Appellant.

Kellye G. Bates, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Office of the Attorney General, Oklahoma City, OK, appearing for Respondent-Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON, and O'BRIEN, Circuit Judges.

TACHA, Chief Circuit Judge.

Petitioner Darron B. Anderson appeals the district court's denial of his habeas petition filed pursuant to 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and AFFIRM.

I. BACKGROUND

In the early morning hours of January 4, 1993, three men kidnapped, robbed, assaulted, and repeatedly raped and sodomized Penny Sue Stuckey. An Oklahoma jury subsequently convicted petitioner Darron B. Anderson of kidnapping, multiple counts of first degree rape and forcible sodomy, first degree burglary,¹ robbery by fear, and grand larceny.

On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) reversed and remanded on all counts. While it reversed most of the counts for instructional error, the OCCA reversed the first degree burglary conviction for insufficient evidence. The court expressly found, however, that the evidence presented to the jury was insufficient only as to the element distinguishing first degree burglary from the lesser included offense of second degree burglary: i.e., the requirement that the dwelling house be occupied at the time of the breaking and entering.² Specifically, the court stated:

Appellants contend the evidence was insufficient to sustain convictions for First Degree Burglary as the State failed to prove all of the elements of the offense, specifically that the dwelling house was occupied at the time of the breaking and entering. Under the language of 21 O.S.1991, § 1431, the breaking and entering must occur when there is a person within the dwelling house. In the present case, Appellants forced the victim to open a window, crawl inside the house and then let them inside the house. At the time of the victim's entry, the house was empty. Her presence in the house, by virtue of merely crawling in the window first, does not satisfy the requirements of first degree burglary.

....

The evidence clearly showed that Appellants broke into the victim's home, thereby satisfying the elements for the lesser included offense of 2nd degree Burglary.

Anderson v. State, No. F-93-826, slip op. at 3-4 & n. 1 (Okla.Crim.App. October 12, 1995) (citing OKLA. STAT. ANN. tit. 21, § 1435 and McArthur v. State, 862 P.2d 482, 485 (Okla.Cr.App.1993)).

Oklahoma law authorizes the OCCA to reverse, affirm, or modify the appellant's judgment and sentence. OKLA. STAT. ANN. tit. 22, § 1066. Here, having found the evidence insufficient to support conviction on the greater offense but sufficient to support conviction for the lesser included offense, section 1066 authorized the OCCA to reverse petitioner's conviction for first degree burglary and impose a conviction for the lesser included offense of second degree burglary. McArthur, 862 P.2d at 485 (construing OKLA. STAT. ANN. tit. 22, § 1066). Thus, while the OCCA could have imposed a conviction for second degree burglary, it instead remanded the modified burglary charge to the Tulsa County District Court along with the rest of the remanded charges, effectively granting petitioner a second chance at acquittal.³

At petitioner's second trial, the Tulsa County District Court judge amended the burglary charge from first degree burglary to the lesser included offense of second degree burglary. Before the trial court, petitioner argued that prosecution for second degree burglary would violate the Double Jeopardy Clause of the U.S. Constitution. The trial court rejected petitioner's contention. The second trial, like the first, resulted in petitioner's conviction on all counts, including second degree burglary.

Petitioner pursued a second direct appeal to the OCCA. With the exception of petitioner's conviction for grand larceny, which the OCCA vacated, the appellate court affirmed as to all counts.

On May 4, 1998, Anderson filed a pro se petition for habeas relief in the United States District Court for the Eastern District of Oklahoma, pursuant to 28 U.S.C § 2254. The cause was then transferred to the Northern District of Oklahoma. In his petition, Anderson reasserted his argument that, following the reversal of his conviction for first degree burglary for insufficient evidence, the Double Jeopardy Clause barred prosecution on the lesser included offense of second degree burglary. The district court denied his petition, and petitioner sought a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1). The district court denied petitioner's request, and this appeal followed.

In an order dated August 7, 2002, finding that petitioner had made a substantial showing of the denial of a constitutional right, see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we appointed petitioner counsel and granted a COA on the following three questions:

(1) May a state appellate court, upon concluding there is evidence insufficient to support a conviction on a greater offense, remand to the trial court for retrial on a lesser included offense?

(2) If so, is such a procedure permissible only where the defendant was indicted and the jury instructed on the lesser included offense?

(3) Are there other conditions that should affect the availability of such a procedure?⁴

II. DISCUSSION

A. Standard of Review

"In reviewing the denial of a habeas corpus petition, we review the district court's factual findings under a clearly erroneous standard, and its legal conclusions de novo." Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, "circumscribes a federal habeas court's review of a state-court decision." Lockyer v. Andrade, ___ U.S. ___, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). Ultimately, "our review of the state court's proceedings is quite limited," Rogers, 173 F.3d at 1282, as section 2254(d) sets forth a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

B. Overview of the AEDPA

Under the AEDPA, we must deny habeas relief unless the state appellate court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Andrade, 123 S.Ct. at 1172; LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999). The Supreme Court clarified this standard in Williams v. Taylor:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Under the "unreasonable application" clause, the Court in Williams stressed that the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. Thus, we may not grant habeas relief merely because we disagree with the state court's application of double jeopardy principles. Id. at 411, 120 S.Ct. 1495. Nor do we reason from constitutional first principles; rather, our inquiry is tightly constrained by the AEDPA's requirement that there be clearly established federal law on point, an inquiry that begins and ends with "`the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Andrade, 123 S.Ct. at 1172 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495).

C. Was the OCCA's Adjudication Contrary to, or an Objectively Unreasonable Application of, Clearly Established Supreme Court Precedent?

Petitioner argues that his prosecution for second degree burglary violated clearly established federal law, reasoning as follows: (1) second degree burglary is a lesser included offense of first degree burglary, and the two therefore constitute the "same offense" for double jeopardy purposes; (2) the OCCA reversed his conviction for first degree burglary for insufficient evidence; (3) appellate reversal for insufficient evidence is the functional equivalent of an acquittal; and (4) an acquittal terminates the original jeopardy and invokes the double jeopardy bar on successive prosecutions. Although petitioner points to Supreme Court holdings that, at least arguably, support every link in this chain, we disagree with his conclusion.

To determine whether the OCCA's decision was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, we must first determine precisely what the Court has held in this regard. We must, therefore, consult the Supreme Court's holdings as to the protections offered by the Double Jeopardy Clause and the double jeopardy effects of a reversal for insufficient evidence. We consider each issue in turn.

1. Protections Under the Double Jeopardy Clause

a. General overview

The Double Jeopardy Clause protects defendants against (1) "a second prose...