Garrison v. Burt, 10–1709.

• Decision Date: 08 March 2011
• Docket Number: No. 10–1709.,10–1709.
• Citation: 637 F.3d 849
• Parties: Howard Paul GARRISON, Appellant,v.Jerry BURT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

637 F.3d 849

Howard Paul GARRISON, Appellant,

v.Jerry BURT, Appellee.

No. 10–1709.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 18, 2010.Filed: March 8, 2011.

Alfredo G. Parrish, argued, Des Moines, IA, for Appellant.Thomas William Andrews, AAG, argued, Des Moines, IA, for Appellee.Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.RILEY, Chief Judge.

Howard Garrison appeals the district court's ¹ denial of habeas relief from his Iowa convictions for two counts of first-degree murder. Garrison argues (1) his retrial violated double jeopardy, (2) prosecutorial misconduct denied his due process right to a fair trial, and (3) his convictions violated due process because the evidence was insufficient to prove he killed the victims. We affirm the district court's denial of Garrison's 28 U.S.C. § 2254 petition.

I. BACKGROUNDA. Factual Background

On October 24, 2002, the bodies of John Caswell, Jr. and Steven Emerson were discovered at Caswell's farm outside of Knoxville, Iowa. Drug activity, including the manufacture, sale, and use of methamphetamine, occurred at the farm before the murders. Garrison was a regular visitor to the farm and witnesses testified to seeing him there on the day of the murders.

Police investigated and determined ballistic and other evidence linked Garrison to the murders. In particular, investigators found one spent .22 shell casing lodged in the vent on the hood of Garrison's car matching other shell casings found at the murder scene. Police arrested Garrison and placed him in the Marion County Jail. According to state witness Brian Martin, an inmate at the Marion County Jail, Garrison confessed to Martin that he killed Caswell and Emerson in a dispute involving drugs.

B. First State Trial

The State of Iowa (state) charged Garrison with two counts of first-degree murder for the deaths of Caswell and Emerson. The case proceeded to trial in November 2003. Garrison moved in limine to suppress evidence showing Garrison used, shared, or sold Oxycontin, arguing such evidence was speculation, improper opinion evidence and highly prejudicial. The state argued the evidence was necessary in order to establish motive and that Martin and Garrison had a prior relationship, which was probative as to why Garrison confided in Martin. The trial court agreed with the prosecutor and allowed the evidence. During direct examination, however, Martin testified he knew Garrison “through other people” and had not known Garrison personally until they were in jail together. Garrison moved for a mistrial, alleging the prosecutor “knew or was negligent or intentionally misrepresented what [Martin] was going to testify to” in order to get the Oxycontin evidence before the jury. The district court denied Garrison's motion for a mistrial but issued a limiting instruction to the jury.

Garrison appealed. Finding the trial court abused its discretion in not declaring a mistrial because the references to Oxycontin were irrelevant and presumptively prejudicial, the Iowa Court of Appeals reversed Garrison's convictions and remanded for a new trial. See State v. Garrison ( Garrison I ), No. 04–0141, 2006 WL 138280, at *11, *19 (Iowa Ct.App. Jan. 19, 2006) (unpub. table disp.).

C. Second State Trial

On remand, Garrison moved to dismiss the trial information, arguing the prosecutor “intentionally engaged in conduct ... designed to force Garrison to move for a mistrial” by gaining admission of Martin's Oxycontin testimony. The trial court denied Garrison's motion, concluding the prosecutor's mistake was unintentional and not intended to force a mistrial. The court reasoned “[o]nce it became apparent [Garrison] and Martin did not have a prior relationship, the State dropped the issue[,] did not mention it during its closing argument [,]” and did not object when Garrison requested a limiting instruction.

Garrison's second trial commenced in October 2006. The parties agreed to avoid references to the first trial. During direct examination, Medical Examiner Marvin Van Haaften testified about his examination of the victims' bodies and his estimation of the victims' times of death. Garrison attempted to impeach Van Haaften's testimony by pointing out inconsistencies in the times underlying Van Haaften's estimations. In an apparent effort to rehabilitate Van Haaften's testimony, the prosecutor asked, “This wasn't the first time you came into court today to determine a time of death in this case, is that correct?” Garrison immediately objected and demanded a mistrial based on prosecutorial misconduct. The trial court found the question “dangerously close to a reference to a first trial,” but denied Garrison's motion. The court did, however, strike the question, sanction the prosecutor by barring him from asking any further questions of Van Haaften, and give the jury a cautionary instruction to “completely disregard” the question. The jury returned a guilty verdict on both counts of first-degree murder, and the trial court sentenced Garrison to two consecutive life sentences without parole.

Garrison again appealed. As relevant here, Garrison challenged (1) the district court's denial of his motion to dismiss on double jeopardy grounds, (2) denial of his motion for a new trial because of prosecutorial misconduct, and (3) the sufficiency of the evidence supporting the convictions. The Iowa Court of Appeals affirmed the convictions. State v. Garrison ( Garrison II ), No. 06–1983, 2008 WL 2902024, at *7 (Iowa Ct.App. July 30, 2008) (unpub. table disp.). Garrison sought further review with the Iowa Supreme Court, which denied Garrison's application.

D. Habeas Corpus Petition to Federal District Court

Garrison petitioned for a writ of habeas corpus in the district court. See Garrison v. Burt ( Garrison III ), 707 F.Supp.2d 945, 949 (S.D.Iowa 2010); see also 28 U.S.C. § 2254. The district court denied habeas relief, holding, in part: (1) double jeopardy did not bar Garrison's second trial; (2) Garrison's due process rights were not violated in the second trial because of prosecutorial misconduct; and (3) the evidence presented at the second trial was constitutionally sufficient to support Garrison's convictions. Id. at 958, 962–63. The district court granted Garrison a certificate of appealability as to the above-mentioned issues. See 28 U.S.C. § 2253.

II. DISCUSSIONA. Procedural Matters

1. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may only grant a writ of habeas corpus to a state prisoner if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law ... or ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “[W]e will grant relief only if the state court decision is both incorrect and unreasonable.” Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir.2010). We presume the Iowa court's factual findings are correct and it is Garrison's burden to rebut this presumption by clear and convincing evidence. See id.; § 2254(e)(1). We review the federal district court's findings of fact for clear error and its conclusions of law de novo. See Cole, 623 F.3d at 1187.

2. Exhaustion

“An application for a writ of habeas corpus filed in federal court by a state prisoner ‘shall not be granted unless it appears that the applicant has exhausted the remedies in the courts of the State.’ ” Welch v. Lund, 616 F.3d 756, 758 (8th Cir.2010) (quoting 28 U.S.C. § 2254(b)(1)(A)). Having presented all of his constitutional claims to the Iowa Court of Appeals and applied for further review with the Iowa Supreme Court, which declined review, Garrison met the exhaustion requirement. Garrison was not required to avail himself of Iowa's post-conviction process as to these three issues. See Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir.1992) ( “To satisfy exhaustion requirements, a habeas petitioner who has, on direct appeal, raised a claim that is decided on its merits need not raise it again in a state post-conviction proceeding.”); Clinkscale v. Carter, 375 F.3d 430, 438 (6th Cir.2004).

B. Merits

1. Double Jeopardy

Garrison argues the second trial violated his double jeopardy rights because, during the first trial, the prosecutor intentionally or recklessly stated Martin knew Garrison and acquired Oxycontin from him despite Martin saying otherwise in his pretrial deposition.

“The Double Jeopardy Clause ... protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (footnote omitted). With limited exceptions, double jeopardy does not bar retrial after a defendant successfully moves for mistrial. Id. at 673, 102 S.Ct. 2083. A defendant may invoke double jeopardy after a mistrial only where the prosecutor's misconduct “was intended to provoke the defendant into moving for a mistrial.” Id. at 679, 102 S.Ct. 2083. “Absent intent to provoke a mistrial, a prosecutor's error in questioning a witness, ... and even extensive misconduct do[es] not prevent reprosecution.” United States v. Beeks, 266 F.3d 880, 882 (8th Cir.2001) (per curiam).

In considering Garrison's motion to dismiss prior to the second trial, the trial court stated:

It is the belief of this Court ... that the evidence overwhelmingly supports the notion that the mistake was not intentional. Once it became apparent that the defendant and Martin did not have a prior relationship, the State dropped the issue and did not mention it during its closing argument. Furthermore, when the defense requested a limiting instruction, the State did not object. Based on the aforementioned facts, the Court concludes that the State did not intend to force a mistrial when it misinformed the Court that the defendant and Martin had a prior relationship.

The record supports the trial...