Krueger, Macaulay v. Dittman, Michael

Filing 65

ORDER denying 55 Motion for Reconsideration re 53 Order filed by Macaulay T. Krueger. Signed by Magistrate Judge Stephen L. Crocker on 3/16/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MACAULAY T. KRUEGER,
Petitioner,

ORDER

v.
13-cv-879-slc
MICHAEL MEISNER, Warden,
Red Granite Correctional Institution,
Respondent.

On November 20, 2015, this court issued a decision and order denying petitioner
Macaulay T. Krueger’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt.
53. Before the court is petitioner’s motion to alter or amend the judgment pursuant to Fed. R.
Civ. P. 59(e) with respect to the court’s ruling on his double jeopardy claim. Dkt. 55. A motion
to alter or amend a judgment is proper only when “‘the movant presents newly discovered
evidence that was not available at the time of trial or if the movant points to evidence in the
record that clearly establishes a manifest error of law or fact.’” Burritt v. Ditlefsen, 807 F.3d 239,
252-53 (7th Cir. 2015) (quoting Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996)).
Petitioner argues that I misunderstood the legal requirements of the controlling federal
law for deciding when double jeopardy bars a retrial after the defendant moves for a mistrial.
Specifically, he argues that I did not properly apply the test set out in United States v. Dinitz, 424
U.S. 600, 611 (1976), which held that the Double Jeopardy Clause bars retrials where
“‘bad-faith conduct by judge or prosecutor’ . . . threatens the ‘(h)arassment of an accused by
successive prosecutions or declaration of a mistrial so as to afford the prosecution a more
favorable opportunity to convict’ the defendant.” (citations omitted).

In rejecting the

defendant’s double jeopardy argument, the Dinitz Court noted that the trial judge’s alleged
misconduct—banishing one of the defendant’s attorneys from the proceedings—“was not done

in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his
prospects for an acquittal.” Id. As I understand petitioner’s argument, he contends that both
this court and the state courts erred by focusing solely on whether the prosecutor was attempting
to goad petitioner into requesting a mistrial instead of also considering whether the prosecutor’s
actions were designed to prejudice petitioner’s prospects for an acquittal. Petitioner argues that
this error resulted in the courts misapplying clearly established federal law.
Petitioner is incorrect. His argument overlooks the Supreme Court’s decision in Oregon
v. Kennedy, 456 U.S. 667, 674 (1982), in which the Court specifically rejected the contention
that under Dinitz, retrial was barred if the defendant’s motion for a retrial was prompted by “bad
faith conduct” or “harassment” by the prosecutor, even absent evidence that the prosecutor was
intending to cause a mistrial. Such a test was too broad, said the Court, because “[e]very act on
the part of a rational prosecutor during a trial is designed to ‘prejudice’ the defendant by placing
before the judge or jury evidence leading to a finding of his guilt.” Id. The Court clarified the
appropriate test as follows:
Prosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant's
motion, therefore, does not bar retrial absent intent on the part
of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause . . . Only where the governmental conduct
in question is intended to “goad” the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his own
motion.
Id. at 675-76.

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As explained in this court’s opinion and order denying petitioner’s habeas petition, the
state courts found as a matter of fact that the prosecutor did not intend to cause a mistrial. Dkt.
53, at 12. Contrary to petitioner’s understanding, this was a fact that he was required to prove
in order to prevent the state from retrying him.

Nothing in petitioner’s motion for

reconsideration convinces me that I erred in finding that the state court of appeals’
determination that the prosecutor lacked such intent was reasonable.

ORDER
The motion of petitioner Macaulay Krueger for reconsideration of the opinion and order
entered November 20, 2015, dkt. 55, is DENIED.

Entered this 16th day of March, 2016.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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