920 F.2d 599 (9th Cir. 1990), 89-35687, Taylor v. Kincheloe

Docket Nº:89-35687.
Citation:920 F.2d 599
Party Name:Gary James TAYLOR, Petitioner-Appellant, v. Lawrence KINCHELOE, Respondent-Appellee.
Case Date:December 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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920 F.2d 599 (9th Cir. 1990)

Gary James TAYLOR, Petitioner-Appellant,


Lawrence KINCHELOE, Respondent-Appellee.

No. 89-35687.

United States Court of Appeals, Ninth Circuit

December 11, 1990

Argued and Submitted Aug. 7, 1990.

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Robert C. Boruchowitz, King County Public Defender's Office, Seattle, Wash., for petitioner-appellant.

John M. Jones, Asst. Atty. Gen., Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, BEEZER and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Gary James Taylor appeals the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. Sec. 2253 (1988), and we affirm.


Lloyd and Lula Miller were murdered on August 21, 1974. The perpetrators shot them both in the head and burned down their home. Taylor and an associate were charged with the crimes. Taylor went to trial in 1975 on two counts of first-degree murder and one count of arson. After the jury was impaneled and sworn, and after the prosecutor's opening statement, Taylor entered into a plea agreement, and the trial was terminated.

Pursuant to the agreement, the prosecutor dropped the arson count and lowered one of the first-degree murder charges to second-degree murder. The trial judge accepted the plea to both first and second-degree murder and sentenced Taylor to two concurrent life terms. Several months later, however, Taylor convinced the state court of appeals to vacate the entire plea agreement on the ground he had not understood its consequences. The prosecutor responded by reinstating the original pre-plea indictment, and Taylor was tried again in January 1977. This time the jury convicted him of two counts of first-degree murder, and acquitted him of the arson charge. The judge who presided over the second trial sentenced Taylor to two consecutive life terms.

Taylor challenged his conviction in the state court of appeals, raising most of the claims he now advances. The court rejected his arguments. State v. Taylor, 22 Wash.App. 308, 589 P.2d 1250 (1979). The Washington State Supreme Court denied review on June 15, 1979. Taylor then filed a petition for a writ of habeas corpus in the district court on August 28, 1987. The magistrate issued a report recommending the petition be denied, which the district court adopted on July 6, 1989. On August 28, 1989, the district court issued an order denying Taylor's application for a certificate of probable cause. We reversed the denial of probable cause, and Taylor now brings this timely appeal.


We review de novo the district court's denial of a petition for a writ of habeas corpus. Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). The district court's factual findings are reviewed for clear error. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). The state courts' factual findings are presumed correct when fairly supported by the record. 28 U.S.C. Sec. 2254(d) (1988); Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).

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The Double Jeopardy Claim 1

A. Introduction

Taylor claims a violation of the Double Jeopardy Clause based on the disparity between the counts to which he formerly pleaded guilty and the counts he subsequently was charged with and convicted of after his plea was vacated.

We note preliminarily that Taylor does not challenge the reinstatement of the first-degree murder charge to which he pleaded guilty under the original plea agreement. 2 Moreover, although Taylor asserts his trial on the arson charge violated double jeopardy, we do not reach this contention since the jury acquitted him of arson, rendering the issue moot. We are thus concerned only with Taylor's remaining first-degree murder charge, which was bargained down to second-degree murder under the terms of the original plea agreement and reinstated after Taylor had that plea agreement set aside.

If Taylor had entered his plea before the jury in his first trial was impaneled and sworn, his double jeopardy claim would be foreclosed. In United States v. Barker, 681 F.2d 589 (9th Cir.1982), the defendant was charged with first-degree murder, pleaded guilty to second-degree murder, had his plea agreement vacated, and was then tried and convicted of the original first-degree murder count. We held the defendant was not placed in double jeopardy merely because he was tried on a higher charge than that to which he had pleaded guilty. Id. at 591.

Taylor resurrects the same argument we rejected in Barker. He correctly notes that in Green v. United States, 355 U.S. 184, 198, 78 S.Ct. 221, 229, 2 L.Ed.2d 199 (1957), the Supreme Court held that a defendant convicted by a jury of a lesser-included offense may not subsequently be tried on the greater charge. 3 He then asserts Green supports the proposition that one who pleads guilty to a lesser-included offense, and then has his plea set aside, may not later be tried on the greater charge. The Barker court demonstrated the weakness of this syllogism. The Supreme Court's decision in Green, it reasoned, was founded upon the principle that when a jury has the option of convicting a defendant of either a lesser or a greater charge, it "implicitly acquits" him of the greater charge by convicting him of the lesser. In contrast to a jury verdict reached at the end of a full trial, a different deliberation occurs when a judge accepts a guilty plea. In approving the plea, the judge generally does not pass on the merits of any higher charges. Because the factual bases of greater charges are never examined, the defendant never stands "in peril" of being convicted of anything higher than that to which he pleads guilty; put simply, the plea bargain process does not force him to run the so-called "gauntlet." Barker, 681 F.2d at 591-92; see also, Haynes v. Cupp, 827 F.2d 435, 437-38 (9th Cir.1987); United States v. Vaughan, 715

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F.2d 1373, 1376-77 (9th Cir.1983). 4

Our conclusion in Barker is consistent with the Supreme Court's later decision in Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In Ricketts, the defendant originally pleaded guilty to second-degree murder. As part of the plea bargain, the defendant agreed to testify at a related trial. When the time came for him to testify, he refused, invoking the Fifth Amendment, and arguing the terms of the agreement did not call for his testimony. The Arizona Supreme Court held the defendant had violated the plea agreement. It therefore vacated his second-degree murder conviction and reinstated the first-degree murder charge contained in the original indictment. The defendant was then tried and convicted of first-degree murder.

The Supreme Court held the Double Jeopardy Clause was not offended when the defendant was tried on the higher charge. Id. at 8-11. The Court first assumed "that jeopardy attached at least when respondent was sentenced ... on his plea of guilty to second-degree murder." Id. at 8. It then concluded the vacation of his plea removed the bar to a second prosecution for first-degree murder. Id. In reaching this result, the Court relied on its opinion in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), drawing the following parallel:

At the close of all the evidence in Scott, the trial judge granted defendant's motion to dismiss two counts of the indictment against him on the basis of preindictment delay. This Court held that the Double Jeopardy Clause did not bar the Government from appealing the trial judge's decision, because "in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause...." [citation omitted] The Court reasoned further that "the Double Jeopardy Clause ... does not relieve a defendant from the consequences of his voluntary choice." ... The respondent in this case had a similar choice. He could submit to the State's request that he testify at the retrial, and in so doing risk that he would be providing testimony that pursuant to the agreement he had no obligation to provide, or he could stand on his interpretation of the agreement, knowing that if he were wrong, his breach of the agreement would restore the parties to their original positions and he could be prosecuted for first degree murder. Respondent chose the latter course, and the Double Jeopardy Clause does not relieve him from the consequences of that choice.

Ricketts, 483 U.S. at 11, 107 S.Ct. at 2686 (emphasis supplied).

The principle articulated in this passage applies forcefully to the facts of the present case. 5 Like defendants in Ricketts and Scott, Taylor chose of his own accord to challenge an aspect of the proceedings against him, and he did so on grounds wholly unrelated to his guilt or innocence. Although Taylor may not be as blameworthy as the defendant in Ricketts, who took a calculated risk of violating his plea agreement, he is certainly comparable to

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the defendant in Scott, who believed that certain charges against him should be dismissed because of preindictment delay. Both had legitimate collateral claims, yet neither should have expected to avert a guilt-innocence determination in succeeding on them. 6 The mere fact that the original charge was reinstated does not summon the spectre of double jeopardy.

Taylor's double jeopardy claim contains an additional nuance...

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