Gregory Paul Wilson v. Stan Czerniak, Superintendent Oregon State Penitentiary

355 F.3d 1151 Gregory Paul WILSON, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent Oregon State Penitentiary, Respondent-Appellee. No. 02-36121. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2003. Filed January 20, 2004. Richard L. Wolf (argued), Portland, Oregon, and Dennis N. Balske (briefed), Portland, OR, for the petitioner-appellant. Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondent-appellee. Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-02-00040-AS. Before ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges. FERGUSON, Circuit Judge. 1 Gregory Paul Wilson ("Wilson") appeals the District Court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus to prevent the State of Oregon from retrying him on three counts of aggravated felony murder. We have jurisdiction over his appeal under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 . We hold that the Fifth Amendment Double Jeopardy Clause prohibits Wilson's retrial because he has already been tried, and acquitted, of a lesser included offense of the charges…

Gregory Paul Wilson (“Wilson”) appeals the District Court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus to prevent the State of Oregon from retrying him on three counts of aggravated felony murder. We have jurisdiction over his appeal under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 . We hold that the Fifth Amendment Double Jeopardy Clause prohibits Wilson’s retrial because he has already been tried, and acquitted, of a lesser included offense of the charges on which the State now seeks to reprosecute him. Accordingly, we reverse the District Court and grant Wilson’s petition for a writ of habeas corpus.

I. Background and Procedural History

A. Wilson’s First Trial

In 1993, Wilson first stood trial in Mult-nomah County Circuit Court, in Oregon, for the kidnapping and murder of Misty Largo. He was convicted on all fifteen counts of the indictment: aggravated murder (counts 1-9), intentional murder (count 10), kidnapping (counts 11-13), assault (count 14), and abuse of a corpse (count 15).

At sentencing, the State advised the trial court that the intentional murder charge in count 10 merged with all nine counts of aggravated murder. The trial court then ordered…

dissenting.

I respectfully dissent.

In this matter, an Oregon state court jury found Mr. Wilson not guilty of intentional murder but was unable to reach a verdict on three counts of aggravated murder. An intent to kill is an element of the crime of aggravated murder under Oregon law. The state trial court denied Mr. Wilson’s motion to bar his retrial for aggravated murder on Fifth Amendment double jeopardy grounds. Mr. Wilson filed a petition for an alternative writ of mandamus before the Supreme Court of Oregon in which he invoked his Fifth Amendment right to protection from double jeopardy. The petition was denied without opinion.

Mr. Wilson filed a state prisoner petition for habeas corpus in the District Court for the District of Oregon. Relying on the United States Supreme Court’s decisions in Richardson v. United States, 468 U.S. 317 , 104 S.Ct. 3081 , 82 L.Ed.2d 242 (1984), and United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984), District Judge Robert E. Jones denied the petition. The district court held, inter alia, that double jeopardy did not apply because the jury’s inability to reach a verdict on the aggravated murder charges was…