Palazzolo v. Gorcyca

• Decision Date: 31 October 2000
• Docket Number: PETITIONER-APPELLANT,RESPONDENT-APPELLEE,No. 99-1862,99-1862
• Citation: 244 F.3d 512
• Parties: (6th Cir. 2001) GERARD JOSEPH PALAZZOLO,, v. DAVID G. GORCYCA, OAKLAND COUNTY PROSECUTOR, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 512

244 F.3d 512 (6th Cir. 2001)

GERARD JOSEPH PALAZZOLO, PETITIONER-APPELLANT, v. DAVID G. GORCYCA, OAKLAND COUNTY PROSECUTOR, RESPONDENT-APPELLEE.

No. 99-1862

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 31, 2000

Decided and Filed: March 27, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-73457--Paul D. Borman, District Judge.

Arthur Jay Weiss (argued and briefed), Law Offices of Arthur Jay Weiss & Associates, Farmington Hills, MI, for Appellant.

Marilyn Day (argued and briefed), Oakland County Prosecutor's Office, Pontiac, MI, for Appellee.

Before: Keith, Boggs, and Cole, Circuit Judges.

Damon J. Keith, Circuit Judge.

Petitioner-Appellant Gerard Joseph Palazzolo ("Petitioner") was indicted in Michigan on a single charge of First-Degree Criminal Sexual Conduct ("CSC I"). The trial court granted Petitioner's motion to reduce the charge to Second-Degree Criminal Sexual Conduct ("CSC II"), and entered Petitioner's plea of nolo contendere over the state's objection. Thereafter, the state successfully appealed the trial court's order reducing the charge, and the Michigan Court of Appeals remanded for reinstatement of the CSC I charge. After exhausting state appeals, Petitioner sought relief, pursuant to 28 U.S.C. § 2254, in the district court below. He appeals from the judgment denying his petition for writ of habeas corpus, raising the single issue of whether the state's appeal and subsequent prosecution of Petitioner on the CSC I charge are barred by the Double Jeopardy Clause. For the reasons that follow, we affirm the judgment of the district court.

I. BACKGROUND

Petitioner was charged with CSC I¹ in Oakland County Circuit Court, arising from the sexual assault of his adopted daughter. At the preliminary examination, his adopted daughter testified that Petitioner came into her room at night and touched her vagina, over her underwear, with his fingers. Her testimony did not indicate any penetration. Also at the preliminary examination, the state introduced Petitioner's confession, in which Petitioner admitted to digitally penetrating the victim and her sister on unspecified occasions.

Petitioner was bound over by the trial court on the charge of CSC I. Petitioner moved to quash the information or reduce the charge arguing that, under Michigan's corpus delicti rule, the state could not use a criminal defendant's confession until the state had introduced non-confession evidence sufficient to establish every element of the crime charged. He argued that his confession could not be used to establish probable cause to believe Petitioner committed CSC I, since penetration is an element of CSC I.

The state trial court first noted that the corpus delicti rule requires that the state introduce evidence of the "occurrence of a specific injury," but need not establish every element of the crime charged. The court concluded, however, that penetration is the "specific injury" of CSC I, and thus is part of the corpus delicti of CSC I. Consequently, the trial court held that the state could not use Petitioner's confession to establish the corpus delicti of CSC I, and granted Petitioner's motion to reduce the charge to CSC II.²

On June 16, 1997, Petitioner pled nolo contendere to CSC II. Prior to the plea, the state prosecutor notified the trial court and Petitioner that the state might appeal the trial court's reduction of the charge from CSC I to CSC II. This apparently took Petitioner's counsel by surprise. He stated that he was not aware that there might be an appeal, and that he did not want his client to constructively consent to an appeal by entering a plea. In response, the state noted that it could take an appeal from the final judgment,³ and did not feel that interlocutory appeal was appropriate. The state prosecutor stated that "[t]he [Petitioner] is not waiving any claims or rights by tendering a plea today." Petitioner's counsel stated that he would "take the Prosecutor's statement that we're not waiving anything by proceeding today[,]...including double jeopardy." The trial court noted the state's objection, and ordered entry of Petitioner's nolo contendere plea.

On July 23, 1997, the trial court sentenced Petitioner to one year incarceration, three years probation, with the balance of jail sentence suspended after six months so that Petitioner could enter the electronic monitoring program. Again at the sentencing hearing, the state gave notice that it might appeal the trial court's order reducing the charge, and noted its objection to the plea and sentence.

On September 8, 1997, the state filed a faulty claim of appeal, which was dismissed by the Michigan Court of Appeals⁴. On September 30, 1997, the state filed a delayed application for leave to appeal, which the Michigan Court of Appeals granted in an order dated December 10, 1997.

On review, the Michigan Court of Appeals held that the trial court erred in finding that Petitioner's confession was inadmissible, and in quashing the CSC I charge. The court noted that the purpose of the corpus delicti rule was to prevent a defendant's confession from being used to convict him of a crime that never occurred. The court noted that the victim's testimony at the preliminary examination was sufficient to establish a specific injury, and therefore Petitioner's confession could be admitted to elevate the crime to a higher degree.

Additionally, the appellate court rejected Petitioner's argument that the appeal should be dismissed because further prosecution would violate the Double Jeopardy Clauses of Art. I, § 15 of the Michigan Constitution of 1963, and the Fifth Amendment of the United States Constitution. Citing Michigan precedent, the court held that when a plea and sentence occur on a reduced charge, and the basis for the reduction is later overturned on appeal, jeopardy does not attach. The appellate court reversed the trial court, remanded the case, and reinstated the original charge of CSC I. The trial court subsequently vacated Petitioner's conviction and sentence on the CSC II charge.⁵

The Petitioner filed an application for leave to appeal in the Michigan Supreme Court, again alleging a double jeopardy violation. On May 25, 1999, that court denied Petitioner's application. Petitioner filed his petition for writ of habeas corpus on July 12, 1999, raising a claim of double jeopardy. On July 26, 1999, the district court issued an order denying Petitioner's petition "for the reasons stated on the record." By the same order, the district court issued a Certificate of Appealability regarding the double jeopardy issue.

II. STANDARD OF REVIEW

This Court reviews de novo the legal conclusions involved in the district court's decision to deny the writ under § 2254, and reviews for clear error its findings of fact. See Barker v. Yukins, 199 F.3d 867, 870 (6th Cir. 1999).

Because Petitioner filed his habeas petition after 1994, the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to this case. The AEDPA amended 28 U.S.C. § 2254(d), which now provides, in relevant part:

[A]n application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of the state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(1) 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.

(2) resulted in a decision that 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) (West 1998).

The Supreme Court, in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1498 (2000), clarified the distinction between a decision "contrary to," and an "unreasonable application of," clearly established Supreme Court law under § 2254(d)(1). A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. 120 S.Ct. at 1523. A state court decision "involves an unreasonable application of clearly established Federal law" only where "the state court's application of clearly established federal law was objectively unreasonable." Id. 120 S.Ct. at 1521. A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. 120 S.Ct. 1522. "Rather, that application must also be unreasonable." Id.

Where the state court has failed to articulate its reasoning for its decision, "federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (citations omitted). "That independent review, however, is not a full, de novo, review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id.

III. DISCUSSION

Petitioner argues that the appeal taken by the state to the Michigan Court of Appeals violated his right against double jeopardy as guaranteed by the Fifth Amendment of the United States Constitution. He contends that the Double Jeopardy Clause stands as an absolute bar to the state's appeal from the final judgment of his conviction, and to the...