Moody v. Ryan et al

Filing 26

ORDER: IT IS ORDERED that Petitioner' 24 Motion for Leave to File Additional Materials is GRANTED in part, to the extent it seeks leave to file the material before this Court, but DENIED in part, to the extent it seeks to expand the state cour t record. Clerk of Court shall file on the record the CDs lodged on the docket (Doc. 25). IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED. Clerk to enter judgment and close this case. In the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability. Signed by Magistrate Judge Lynnette C Kimmins on 8/28/17.(BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Joe Moody,

No. CV-15-00474-TUC-LCK
Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan,

13

Respondent.

14
15

Petitioner Robert Joe Moody has filed a Petition for Writ of Habeas Corpus

16

pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondent’s

17

Answer (Doc. 13), and Petitioner’s Reply (Doc. 22). Petitioner also filed a Motion for

18

Leave to File Additional Materials. (Doc. 24.) The parties have consented to Magistrate

19

Judge jurisdiction. (Doc. 6.) The Court finds the Petition should be dismissed on the

20

merits.

21

FACTUAL AND PROCEDURAL BACKGROUND

22

Petitioner was convicted in the Pima County Superior Court on two counts of first

23

degree murder in 1995 and sentenced to death. (Doc. 13-1 at 3-4.) On appeal, the Arizona

24

Supreme Court reversed Petitioner’s convictions based on the trial court’s denial of

25

Petitioner’s motion for change of counsel. (Id. at 6.) Petitioner again was convicted

26

following a second trial and sentenced to death. (Id. at 25.)

27

Upon Petitioner’s automatic appeal to the Arizona Supreme Court, Petitioner

28

argued, in part, that his retrial was barred on double jeopardy grounds based upon

1
2
3
4
5
6
7
8
9

prosecutorial misconduct in the first trial. (Id. at 27.) The appellate court found that
Petitioner had neither moved for a mistrial based on prosecutorial misconduct during the
first trial nor filed a special action seeking review of the trial court’s denial of his motion
to dismiss based on double jeopardy before the second trial. (Id. at 27-28.) Therefore, the
court held the double jeopardy claim was not preserved for appeal and declined to
address it. (Id. at 28.) However, the court vacated Petitioner’s death sentence. (Id. at 5356 (citing Ring v. Arizona, 536 U.S. 584 (2002).) Petitioner was resentenced to
consecutive life terms. (Doc. 13-2 at 3.) His subsequent appeal was unsuccessful. (Id. at
2-24; Doc. 13-3 at 2.)

10
11
12
13
14
15
16

Prior to the conclusion of Petitioner’s resentencing appeal, he filed a timely Postconviction Relief (PCR) Notice. (Doc. 13-3 at 4-5.) In the PCR Petition, Petitioner
argued, in part, that his retrial was barred on double jeopardy grounds based upon
prosecutorial misconduct. (Id. at 8-16.) The PCR court held the claim was precluded
because it previously had been raised and adjudicated on appeal. (Id. at 69.) The Court of
Appeals granted review but denied relief, agreeing the claim was precluded. (Id. at 8790.)

17
18
19
20
21
22
23
24
25
26

DISCUSSION
The Petition raises a single two-part claim that double jeopardy was violated by
retrial because, in the first trial, there was prosecutorial misconduct and insufficient
evidence of guilt. (Doc. 1.) Respondents contend the claim is procedurally defaulted. The
Court finds this claim is most expeditiously resolved on the merits. See 28 U.S.C.
§ 2254(b)(2).
Merits Analysis
Pursuant to the Double Jeopardy Clause of the United States Constitution’s Fifth
Amendment, “No person shall be subject for the same offence to be twice put in jeopardy
of life or limb.”

27
28
-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

First, Petitioner alleges his retrial was barred on double jeopardy grounds due to
prosecutorial misconduct that occurred in the first trial. The Supreme Court has spoken
on this point, holding that retrial is barred by double jeopardy only in “those cases in
which the conduct giving rise to the successful motion for a mistrial was intended to
provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679
(1982). Here, regardless of whether Petitioner made several motions for mistrial as he
alleges, he cannot find relief under the Kennedy holding. Petitioner’s first trial did not end
in a mistrial but in a conviction; therefore, Petitioner never obtained the “successful
motion for mistrial” upon which the Kennedy holding relies.
Second, Petitioner argues his retrial was barred because the prosecution presented
insufficient evidence of guilt at the first trial. The Supreme Court also has addressed
directly whether insufficiency of evidence may be used as a means to bar retrial on
double jeopardy grounds. The Court held that the Double Jeopardy Clause “may preclude
a second trial once the reviewing court has found the evidence legally insufficient.” Burks
v. United States, 437 U.S. 1, 18 (1978). However, the Court specifically distinguished
instances in which the appellate court found that the evidence presented was legally
insufficient from instances where trial error provoked a reversal on appeal. Id. at 15. The
Court held that the Double Jeopardy Clause “does not preclude the Government’s
retrying a defendant whose conviction is set aside because of an error in the proceedings
leading to conviction.” Id. at 14 (quoting United States v. Tateo, 377 U.S. 463, 465
(1964)). Here, no such insufficiency of evidence determination was made on appeal;
rather, the Arizona Court of Appeals granted relief solely on an issue relating to
appointment of counsel. (Doc. 13-1 at 4 (declining to reach any other issues).) Therefore,
Petitioner is not entitled to relief under Burks.
Petitioner has cited a number of Arizona court cases analyzing prosecutorial
misconduct’s effect on retrial in light of the Double Jeopardy Clause. See Pool v.
Superior Court, 677 P.2d 261, 270-72, 139 Ariz. 98, 107-09 (1984); State v. Jorgenson,

28
-3-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

10 P.3d 1177, 198 Ariz. 390 (2000); State v. Minnitt, 55 P. 774, 783, 203 Ariz. 431, 440
(2002).1 However, each of these cases was decided based upon Arizona’s Double
Jeopardy Clause. In fact, in Pool, the Arizona Supreme Court rejected the standard set
forth in Oregon v. Kennedy. 677 P.2d at 271, 139 Ariz. at 108. These cases, based on the
state constitution, provide no support for Petitioner’s federal Petition because this Court
may grant relief only under federal law. See 28 U.S.C. § 2254(a).
Petitioner’s Motion for Leave to File Additional Materials
Petitioner has filed a Motion for Leave to File Additional Materials, which
consists of four discs. (Docs. 24, 25.) Petitioner asserts this material is relevant to show
that during his first trial he moved for mistrial seven times, made a motion for new trial
and a motion to vacate judgment, and filed one or more special actions in the Arizona
Court of Appeals. Assuming the discs reflect the material identified by Petitioner, it
would not alter the factual or legal basis of the Court’s merits analysis. Therefore, the
Court denies the motion to expand the state record, but will file the discs into the record
of this Court for preservation.

16
17
18
19
20
21
22
23

CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court
must issue or deny a certificate of appealability (COA) at the time it issues a final order
adverse to the applicant. A COA may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
showing can be established by demonstrating that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner” or that the issues were “adequate to deserve encouragement to proceed

24
25
1

26
27
28

Petitioner also cites State v. Hughes, 969 P.2d 1184, 1190-92, 193 Ariz. 72, 7880 (1998). While that case addressed prosecutorial misconduct, there was no double
jeopardy claim at issue. Id. at 1192, 193 Ariz. at 80. Additionally, Petitioner relies upon
United States v. Dinitz, 424 U.S. 600 (1976). This Court need not rely upon Dinitz
because the Supreme Court narrowed the standard set forth in that case when it decided
Oregon v. Kennedy. 456 U.S. at 673-79.
-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). The Court finds that reasonable jurists would not find this
Court’s merits ruling debatable. Therefore, a COA will not issue.
Accordingly,
IT IS ORDERED that Petitioner’s Motion for Leave to File Additional Materials
(Doc. 24) is GRANTED in part, to the extent it seeks leave to file the material before
this Court, but DENIED in part, to the extent it seeks to expand the state court record.
The Clerk of Court shall file on the record the CDs lodged on the docket (Doc. 25).
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is
DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and
close this case.
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a
certificate of appealability.
Dated this 28th day of August, 2017.

17
18
19
20
21
22
23
24
25
26
27
28
-5-