Owens v. Trammell

• Decision Date: 07 July 2015
• Docket Number: No. 13–5066.,13–5066.
• Parties: Keynon Michael OWENS, Petitioner–Appellant, v. Anita TRAMMELL,Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

792 F.3d 1234

Keynon Michael OWENS, Petitioner–Appellant
v.
Anita TRAMMELL^* Warden, Respondent–Appellee.

No. 13–5066.

United States Court of Appeals, Tenth Circuit.

July 7, 2015.

792 F.3d 1237

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, CO, for Appellant.

Ashley L. Willis, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Office of the Oklahoma Attorney General, Oklahoma City, OK, for Appellee.

Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.

Opinion

TYMKOVICH, Circuit Judge.

Oklahoma has successfully tried Keynon Owens twice for the first degree felony murder of Javier Carranza during a botched robbery of Javier and his cousin, Jesus Carranza. The first trial resulted in a guilty verdict on felony murder, but an acquittal on the predicate charge of the armed robbery of Javier. The Oklahoma Court of Criminal Appeals (OCCA) reversed the murder conviction and remanded for retrial on the ground that error committed by the trial court resulted in a substantial possibility of prejudice—specifically, that Owens may have been convicted based on his involvement in the robbery as a whole rather than the predicate felony charged in the information.

A second trial also resulted in a conviction on felony murder. On his second appeal to the OCCA, Owens unsuccessfully argued that his retrial violated the Double Jeopardy Clause's command 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. He contended the jury's acquittal on the predicate robbery felony (of Javier) at his first trial should have barred the State from retrying him for felony murder under constitutional principles of collateral estoppel. To win a felony murder conviction on retrial, the State had to prove that he robbed Javier and that issue, he argued, was already decided in his favor by the first jury's acquittal. Thus, the retrial forced him “to run the gantlet a second time.” Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (internal quotations omitted).

Owens next sought habeas relief under 28 U.S.C. § 2254 in federal district court. Deferring to the OCCA's interpretation of federal law, the district court held the denial of Owens's collateral estoppel claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Owens v. Addison, No. 12–CV–0117–CVE–FHM, 2013 WL 1828049 (N.D.Okla. Apr. 30, 2013).

We granted a certificate of appealability (COA) to decide whether Owens's retrial for felony murder violated the Double

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Jeopardy Clause. Exercising jurisdiction under 28 U.S.C. § 1291, we now reach the same conclusion as the district court in reviewing the denial of Owens's petition for a writ of habeas corpus. In our view, Owens has not met his burden of “show[ing] that the state court's ruling ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

We therefore AFFIRM the denial of the petition and dismiss this appeal.

I. Background

The factual and procedural backgrounds are especially important in understanding this appeal, so we recite them in some detail before turning to the relevant Supreme Court precedent.

A. Factual Background

While at a Tulsa strip club, cousins Javier and Jesus Carranza arranged to meet Brandi Lindsey, one of the dancers, after the club closed. Lindsey then called her boyfriend, Joe Sanders, and the two crafted a plan to rob the Carranzas. At 2:00 am, Javier and Jesus followed Lindsey to the apartment complex where she and Sanders lived.¹ Although the accounts of what happened next differed slightly at trial, everyone agrees that when the Carranzas arrived at the apartment complex they were confronted by two men, later identified as Sanders and Keynon Owens. Sanders demanded money. When the Carranzas ran, he shot both men. Owens went to where Jesus lay wounded on the ground and took his wallet and keys. Sanders meanwhile told Javier—“I told you not to run”—shot him two more times at point blank range, and then took his wallet. Javier died at the scene.

The State charged Owens with four counts that are important to keep in mind in understanding the two resulting trials:

Count II—first degree felony murder of Javier with the predicate felony specified as robbery with a dangerous weapon of Javier;

Count III—shooting with intent to kill of Jesus;

Count IV—robbery with a dangerous weapon of Javier; and

Count V—robbery with a dangerous weapon of Jesus.

Sanders was charged in the same information with the same counts (in addition to first degree murder) and tried jointly with Owens. Lindsey, who was also charged, reached a plea deal and testified against Owens and Sanders at trial.

B. Procedural Background

1. The First Trial

In the opening instructions, the trial judge instructed the jury, consistent with the information, that the felony murder charge against Owens was predicated on the armed robbery of Javier. At the close of trial, however, the jury was sent to deliberate with the following felony murder instruction:

No person may be convicted of felony murder unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, the death occurred as a result of an act or event which happened in the defendants' commission of robbery with a dangerous weapon;

Third, the elements of the robbery with a dangerous weapon the defendants are alleged to have been in the commission of are as follows:

First, wrongfully;

Second, attempting to take;

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Third, and carry away;

Fourth, personal property;

Fifth, of another;

Sixth, from the person or the immediate presence of another;

Seventh, by force or fear;

Eighth, through use of a loaded firearm.

R., Vol. I at 228 n.13. The instruction did not specify that Owens could be found guilty of felony murder only if, in determining the third element, the jury found the death occurred during the commission of the robbery of Javier with a dangerous weapon. Because Owens was charged with both the robbery of Javier and the robbery of Jesus and because the jury was also given an aiding and abetting instruction, the felony murder instruction opened the door to confusion as to which conduct the jury could consider in returning a felony murder conviction.

This confusion played out in a series of notes from the jury to the trial judge. One note asked, “Can we consider Instruction 37² second element to be the whole robbery of both Javier and Jesus[?] We are making the Instruction 47³ robbery of Javier separate from Jesus. Is that correct?” Id. at 229. The trial judge responded, “Instruction # 47 relates to count 4 robbery of Javier Carranza. I don't understand the question concerning Instruction # 37.” Id. at 230 n. 18. Another note asked, “Can we say not guilty for Keynon Owens on Count 4—robbery w/ dangerous weapon of Javier while at the same time saying guilty for ... Owens on Count 2—felony murder? Would that even make sense?” Id. at 229. The judge responded, “I cannot advise you how to decide the case.” Id. at 230 n. 18.

The jury returned the following verdict, illustrated in the table below: guilty of felony murder of Javier (Count II), not guilty of shooting Javier with intent to kill (Count III), not guilty of robbery with a dangerous weapon of Javier (Count IV), and guilty of robbery with a dangerous weapon of Jesus (Count V). In other words, the jury found Owens guilty of causing Javier's death while robbing him with a dangerous weapon, but not guilty of robbing him with a dangerous weapon.

Count Charge Jury Verdict in First Trial

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