John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections

789 F.2d 722 John Harvey ADAMSON, Petitioner-Appellant, v. James G. RICKETTS, Director, Arizona Department of Corrections, et al., Respondents-Appellees. No. 84-2069. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Sept. 17, 1985. Decided May 9, 1986. Timothy J. Foley, San Francisco, Cal., Timothy K. Ford, Seattle, Wash., for petitioner-appellant. Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before KENNEDY, HUG, SCHROEDER, PREGERSON, ALARCON, FERGUSON, NELSON, BOOCHEVER, NORRIS, BEEZER, and BRUNETTI, Circuit Judges. FERGUSON, Circuit Judge: 1 Petitioner filed a petition for a writ of habeas corpus in the District Court of Arizona after exhausting all his state remedies. He contends that his conviction for first degree murder and death sentence violated various provisions of the federal Constitution. The district court denied his petition, and a panel of this court affirmed that denial, Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985). That decision was vacated when the majority of…

join, dissenting:

Adamson has no valid double jeopardy defense to his prosecution for first degree murder, therefore I respectfully dissent.

1. Background.

John Harvey Adamson was charged with first degree murder in connection with the bombing death of Donald Bolles in Phoenix, Arizona. His first degree murder trial had commenced and was in the process of jury selection when Adamson and his attorneys struck a plea agreement with the district attorney whereby Adamson agreed to provide testimony against certain individuals, including James Robison and Max Dunlap, with regard to the murder of Donald Bolles, and to plead guilty to a charge of second degree murder. The plea agreement provided that Adamson would receive a sentence of 48-49 years imprisonment, with a maximum of 20 years, two months to be served, and that other charges pending against him would be dismissed.

The plea agreement was submitted to Arizona Superior Court Judge Birdsall for approval. At a formal hearing, the judge reviewed each detail of the plea agreement with Adamson, approved the agreement, and the first degree murder trial was suspended. The plea agreement provided for deferred sentencing; accordingly,…

Petitioner filed a petition for a writ of habeas corpus in the District Court of Arizona after exhausting all his state remedies. He contends that his conviction for first degree murder and death sentence violated various provisions of the federal Constitution. The district court denied his petition, and a panel of this court affirmed that denial, Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985). That decision was vacated when the majority of the judges of the circuit voted to have the appeal determined by an en banc panel. We reverse the district court and direct the issuance of a writ of habeas corpus.

I.

Petitioner Adamson was arrested and charged with the 1976 car bombing murder of Don Bolles, an investigative reporter in Arizona. In January 1977 Adamson and the state entered into a plea agreement 1 under which Adamson would testify against two other individuals and plead guilty to second degree murder. In exchange, Adamson would receive a sentence of 48-49 years imprisonment, with actual incarceration time to be 20 years, 2 months.

On January 15, 1977, Superior Court Judge Ben Birdsall reviewed the plea agreement, but conditioned his acceptance of its provisions until he…

dissenting:

I concur in general in the dissent by Judge Brunetti and find compelling his demonstration that this defendant so well understood the mechanics of the plea bargain and the risks consequent from breach that the majority’s requirement of double jeopardy waiver is pointless. With all respect, I submit the majority’s analysis rests on other explicit and implicit assumptions that are quite contrary to settled principles of double jeopardy law. I dissent separately to make clear the full extent of my disagreement with the analysis apparently adopted by a majority of the court.

As I explain further below, the principal error of the majority is its assumption that a conviction resting on a plea agreement protects the defendant against trial for a higher offense if the plea or the conviction on which it stands is properly set aside. I submit this is incorrect. The extent of double jeopardy protection when a guilty plea and conviction are set aside requires an inquiry into the grounds upon which they were set aside. If the conviction here could not stand by reason of a breach of the plea agreement, the defendant could be tried on the same charge or on a higher one, for the…