Wilson v. Czerniak
| Decision Date | 21 November 2002 |
| Docket Number | Civil No. 02-40-AS. |
| Parties | Gregory Paul WILSON, Petitioner, v. Stan CZERNIAK, Superintendent, Oregon State Penitentiary, Respondent. |
| Court | U.S. District Court — District of Oregon |
Dennis N. Balske, Office of the Federal Public Defender, Portland, OR, Richard L. Wolf, Portland, OR, for Petitioner.
Lynn David Larsen, Oregon Department of Justice, Salem, OR, Michael D. Reynolds, Solicitor General, Salem, OR, Robert J. Leineweber, Multnomah County District Attorney's Office Portland, OR, for Respondent.
Petitioner brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to prevent the State of Oregon from trying him a third time on three charges of aggravated felony murder. In his Findings and Recommendation, Magistrate Judge Ashmanskas granted the habeas corpus petition. For the reasons set forth below, I decline to adopt the Findings and Recommendation, and dismiss the habeas corpus petition.
I take the factual background of this case from the petitioner's appeal, State v. Wilson, 323 Or. 498, 500, 918 P.2d 826 (1996), which in turn took the facts of the case from the co-defendant's case, State v. Charboneau, 323 Or. 38, 40-41, 913 P.2d 308, 310-11:
We view the evidence adduced at trial in the light most favorable to the state, because the jury found defendant guilty. See State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993) ( principle). The victim, Misty Largo, was a homeless teenager who had been living in Portland for 6 to 12 months at the time of her death. On July 25, 1992, defendant, along with Greg Wilson and two other men, drove to an area under the Marquam Bridge where Largo then was living. Defendant and Wilson were concerned that Largo was spreading rumors about Wilson's having stabbed someone.
The group found Largo and escorted her back to their vehicle at knifepoint. They drove to defendant's house. Defendant took Largo into the house, also at knifepoint. Many people were there. Largo was taken into a back room. Wilson instructed several of the people present to hit Largo in the face, and they did. Largo was kept in the back room, where she was repeatedly interrogated and slapped.
The next day, defendant and Wilson left the house and told others in the house to make sure that Largo did not leave. When defendant and Wilson returned later that day, Largo was interrogated and slapped for several hours. Then she was taken again to the back room. At some point that evening, Wilson, in defendant's presence, decided that he would kill Largo.
Largo was tied to a wheelchair. Wilson and defendant first tried to kill Largo by poisoning her with a glass of water in which they had dissolved a nitroglycerin pill. When that act failed to kill Largo, defendant found a plastic bag and placed it over Largo's head. After about five minutes, Largo was still breathing. Defendant then located a piece of speaker wire and wrapped it around Largo's neck. Defendant and Wilson took turns choking Largo with the speaker wire for five to ten minutes. Still not convinced that Largo was dead, Wilson hit Largo on the sternum and throat. She `gurgled and choked and stopped breathing.' After Largo died, defendant said that he would dispose of her body. Defendant and Michael Leon Stanton, another man at defendant's house, left with the body. Defendant later said that he had hit Largo twice in the head with a splitting maul and that he and Stanto had stabbed her in the heart.
Petitioner was tried before a jury in 1993 in Multnomah County Circuit Court on a 15-count indictment. Counts 1, 2, and 3 charged aggravated felony murder, alleging that petitioner personally and intentionally killed Misty Michelle Largo while in the course of kidnaping her. Count 4 charged aggravated murder in the course of intentional torture. Counts 5, 6, and 7 charged aggravated murder to conceal the commission of the three kidnaping counts. Count 8 charged aggravated murder for the purpose of concealing the commission of the co-defendant's sodomy of Ms. Largo. Count 9 charged aggravated murder to conceal the commission of assault in the third degree. Count 10 charged intentional murder. Counts 11, 12, and 13 charged three kidnaping theories (second degree kidnap, first degree kidnap for the purpose of terrorizing, and first degree kidnap for the purpose of causing physical injury). Count 14 charged assault in the third degree, and Count 15 charged aiding and abetting the abuse of a corpse.
Petitioner was convicted on all 15 counts, and judgments of death were entered on all nine aggravated murder counts. The intentional murder charge in count 10 merged with the aggravated felony murder count charged in count 1, as requested by the State in its sentencing memorandum. The judgments and sentences of death were automatically directly reviewed by the Oregon Supreme Court, which reversed and remanded for retrial on the nine aggravated murder counts and the one intentional murder count. The remaining convictions and sentences were affirmed. See State v. Wilson, 323 Or. 498, 918 P.2d 826 (1996).
Petitioner was tried before a jury a second time on the aggravated murder and intentional murder charges. The aggravated murder charge in Count 8, based upon concealing the commission of sodomy, was dismissed before trial as petitioner's codefendant had been acquitted of the charge of sodomy. To prevent a "gap" in the number of counts the jury would consider, the trial court re-numbered the intentional murder count from count 10 to count 9, and the aggravated murder count that was originally count 9 was re-numbered to count 8. The remaining counts of aggravated murder (1-7) were numbered the same in the retrial as they were in the original trial.
The second jury returned verdicts of not guilty on the charged offenses in counts 4 through 9, convicting petitioner instead of the lesser included offenses of attempted aggravated murder (counts 4 through 8) and attempted murder (count 9). The jury was unable to reach a verdict on counts 1, 2, and 3 (aggravated felony murder in the course of the three kidnaping theories). The jurors had been instructed by the trial court that they must "acquit first" on the charged offenses before considering any lesser included offenses.
The State of Oregon now seeks to retry petitioner on the three aggravated felony murder counts on which the second jury was unable to reach a verdict. Petitioner filed a motion in the state trial court to bar his retrial on Fifth Amendment double jeopardy grounds. The motion was denied. Petitioner then sought a Writ of Mandamus from the Oregon Supreme Court on the same grounds, which was denied without opinion.
Petitioner filed this action on January 9, 2002. In his petition, he alleges that the second jury's verdict of not guilty on the charge of intentional murder bars a retrial on the charges of aggravated felony murder.1
Petitioner exhausted his state remedies on his double jeopardy claim by moving to bar a retrial and by seeking a Writ of Mandamus from the Oregon Supreme Court. Accordingly, this court has jurisdiction to consider the petition for writ of habeas corpus under 28 U.S.C. § 2254. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992) (citing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-03, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984)).
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "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).
A state court acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000); Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000).
An "unreasonable application of clearly established Federal law" occurs if the state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. See Williams, 529 U.S. at 413, 120 S.Ct. 1495; Ramdass, 530 U.S. at 166, 120 S.Ct. 2113; Van Tran, 212 F.3d at 1150. Under this standard of review, a federal court may not issue a writ simply because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly. See Williams, 529 U.S. at 411, 120 S.Ct. 1495. Rather, for a state court's application of federal law to be unreasonable, it must have been clearly erroneous. See Van Tran, 212 F.3d at 1153.
Where a state court does not articulate a rationale for its determination, a review of that court's application of clearly established law is difficult. As the Ninth Circuit explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) (citation omitted).
Petitioner contends that the State of Oregon cannot retry him on the three aggravated felony murder charges because a retrial would violate the Double Jeopardy Clause. Because the jury in the second...
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