Custer v. Hill
| Decision Date | 06 August 2004 |
| Docket Number | No. 02-36038.,02-36038. |
| Citation | 378 F.3d 968 |
| Parties | Jimmie Lee CUSTER, Petitioner-Appellant, v. Jean HILL, Superintendent, Eastern Oregon Correctional Institution, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donnal S. Mixon, Assistant Federal Public Defender, Medford, OR, for the petitioner-appellant.
Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondent-appellee.
Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-00-00433-JE.
Before ALARCON, FERGUSON, and RAWLINSON, Circuit Judges.
Opinion by Judge RAWLINSON; Dissent by Judge FERGUSON.
Jimmie Lee Custer appeals the District Court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction for sodomy in the first degree. Custer's claim that the Oregon court violated his rights under the Fifth Amendment fails. Custer was not subjected to double jeopardy when Oregon prosecuted Custer for engaging in sodomy with his stepson between November 1, 1986 and June 19, 1987, after Custer was acquitted at a prior trial charging him with engaging in sodomy on June 20, 1987, because Custer was tried for different offenses that occurred at different times. Custer's petition that his counsel was ineffective at trial for abandoning a double jeopardy claim and failing to raise it on appeal fails because Custer did not fairly present the ineffective assistance of counsel claim to the Oregon Supreme Court, and no cause exists to excuse the procedural default.
On September 17, 1987, Custer was charged by indictment with sodomy in the first degree by the State of Oregon. The indictment alleged that Custer, "on or about June 20, 1987, in Marion County, Oregon, did then and there unlawfully, feloniously and knowingly engage in deviate sexual intercourse" with J.,1 Custer's stepson.
On February 2, 1988, the case came to trial. In his opening statement, the prosecutor told the jury that J. "heard his stepfather coming into the room, and you will hear from the evidence that this was not the first time he had heard his stepfather coming, and he had some anticipation of what was happening." However, when the prosecutor called the victim to the witness stand, the victim failed to answer questions about statements he had made to relatives and state officials regarding the charged conduct, or about the charged conduct itself. The trial judge entered an order of dismissal due to insufficient evidence on February 19, 1988.
Nearly three years later, on October 5, 1990, Custer was again indicted on a charge of sodomy in the first degree. However, the second indictment referenced different dates; it alleged that Custer "on or between November 1, 1986, and June 19, 1987," engaged in "deviate sexual intercourse" with J. The second indictment encompassed dates that preceded the June 20, 1987 date specified in the first indictment.
On August 18, 1992, the second trial commenced. J., who was then nineteen years old, testified that he had been sexually abused and sodomized by Custer over a period of six years.2 The jury convicted Custer of first degree sodomy, and Custer received a twenty-year sentence.
Custer directly appealed his conviction and sentence from the second trial on a basis not relevant to this appeal. The Oregon Court of Appeals affirmed Custer's conviction and sentence without opinion. State v. Custer, 124 Or.App. 438, 865 P.2d 1339 (1993). Custer did not petition for review by the Oregon Supreme Court.
Custer's petition for post-conviction relief asserted that the trial court "failed to dismiss the charges against Petitioner on the grounds of Former Jeopardy and Double Jeopardy" and "unlawfully allowed prosecution of Petitioner twice for the same charge in violation of the United States Constitution and 5th Amendment ..." The petition also alleged that "Petitioner was denied adequate assistance of counsel under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States ... in that defense counsel failed to ... [p]roperly preserve issues regarding the prior dismissal for lack of evidence five years earlier regarding the same charge and evidence constituting Double Jeopardy ..."
Holding that the two prosecutions were not part of the same criminal episode, the post-conviction court rejected Custer's claims and denied relief. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied Custer's petition for review.
In his federal habeas petition, Custer sought relief on the bases that Oregon violated his Fifth Amendment rights when the state prosecuted him twice for the same charge, and that his Fifth, Sixth, and Fourteenth Amendment rights were violated when his trial counsel failed to object to Custer's second prosecution.
The district court found that Custer had preserved his federal double jeopardy claim, but that the claim was without merit.3 The district court determined that Custer's ineffective assistance of counsel claim was procedurally defaulted because it was not presented to the Oregon Supreme Court. The district court declined to consider whether cause and prejudice excused this procedural default, because the court considered the underlying double jeopardy claim to be without merit.
Custer now appeals the determinations that he was not subjected to double jeopardy in violation of the Fifth Amendment, and that his ineffective assistance of counsel claim was procedurally defaulted. In the alternative, Custer contends that cause and prejudice excuse any procedural default.
We review de novo the district court's denial of a habeas corpus petition. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provisions are applicable, since Custer filed his petition after AEDPA's effective date. See id.
Habeas relief is not warranted unless we conclude that the state appellate court's4 "adjudication of the claim 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." Id. (citation and internal quotation marks omitted). "A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result." Id. (citation omitted). "A state court's decision involves an unreasonable application of federal law if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the prisoner's case." Id. (citation, internal quotation marks, and alteration omitted).
The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. Accordingly, for Custer to prevail on his double jeopardy claim, he must demonstrate that, under clearly established Federal law, he was "subject for the same offence" at both his first and second trials.
Relying on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Custer asserts that the state appellate court's decision upholding his conviction was contrary to clearly established federal law. He contends that under clearly established federal law, the 1988 dismissal of the charge that he engaged in sodomy on June 20, 1987 prohibited the subsequent 1992 prosecution of sodomy that occurred between November 1, 1986, and June 19, 1987.
In Custer v. Baldwin, 163 Or.App. 60, 986 P.2d 1203 (1999), the Oregon Court of Appeals determined that Custer's second trial did not violate his former jeopardy5 rights under the Oregon Constitution because Custer's acts of sodomy against J. were not all part of the "same criminal episode" and consequently were not required to be prosecuted together. Custer, 163 Or.App. at 68-69, 986 P.2d 1203.
"The Double Jeopardy Clause protects defendants against: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." Turner v. Calderon, 281 F.3d 851, 889 (9th Cir.2002) (citation and internal quotation marks omitted). "Such protections are intended to insure that the State with all its resources and power [is] not allowed to make repeated attempts to convict an individual for an alleged offense[.]" Id. (citation, internal quotation marks, and alteration omitted).
However, Oregon indicted and prosecuted Custer for two different incidences of sexual abuse: the first trial was based upon the single-count indictment charging that Custer committed sodomy on June 20, 1987, and the second trial was predicated upon acts of sodomy committed between November 1, 1986 and June 19, 1987. The two prosecutions were based on indictments that alleged different criminal episodes occurring at different times.
The evidence presented at the two trials supports the Oregon Court of Appeals's determination that the state did not prosecute Custer twice for the same criminal episode. At the first trial, the state provided evidence in an attempt to prove that Custer engaged in sodomy with J. on June 20, 1987. The victim's mother witnessed Custer kneeling on the end of J.'s bed between J.'s legs, while J. was naked and face down on the bed with his legs spread. However, the mother did not observe an actual act of sodomy and when J. would not describe an...
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