Jimmie Lee Custer v. Jean Hill, Superintendent, Eastern Oregon Correctional Institution

Opinion by Judge RAWLINSON; Dissent by Judge FERGUSON.

Jimmie Lee Custer appeals the District Court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction for sodomy in the first degree. Custer’s claim that the Oregon court violated his rights under the Fifth Amendment fails. Custer was not subjected to double jeopardy when Oregon prosecuted Custer for engaging in sodomy with his stepson between November 1, 1986 and June 19, 1987, after Custer was acquitted at a prior trial charging him with engaging in sodomy on June 20, 1987, because Custer was tried for different offenses that occurred at different times. Custer’s petition that his counsel was ineffective at trial for abandoning a double jeopardy claim and failing to raise it on appeal fails because Custer did not fairly present the ineffective assistance of counsel claim to the Oregon Supreme Court, and no cause exists to excuse the procedural default.

I. BACKGROUND/PROCEDURAL HISTORY

A. The First Trial

On September 17, 1987, Custer was charged by indictment with sodomy in the first degree by the State of Oregon. The indictment alleged that Custer, “on or about June 20, 1987, in…

dissenting in part:

Three years after a trial at which the State of Oregon was unable to produce sufficient evidence for a conviction of sodomy of his stepson on or about June 20, 1987, Jimmie Lee Custer was tried a second time and convicted of sodomy of his stepson on or between November 1, 1986, and June 19, 1987. Because “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding,” Burks v. United States, 437 U.S. 1, 11 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), I dissent from Part 111(A) of the majority opinion.

The Fifth Amendment provides that no one shall be “subject for the same offense to be twice put in jeopardy of life or limb.” For Custer to prevail on his Double Jeopardy claim, he must demonstrate that, under clearly established federal law, he was subject to jeopardy for the same offense at both his first and second trials. He has made such a showing under the original common law test, which remains part of federal law established by the Supreme Court.

In a concurrence to Ashe v. Swenson, 397 U.S. 436, 450-51 , 90 S.Ct. 1189 , 25 L.Ed.2d 469…

378 F.3d 968 Jimmie Lee CUSTER, Petitioner-Appellant, v. Jean HILL, Superintendent, Eastern Oregon Correctional Institution, Respondent-Appellee. No. 02-36038. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2003. Filed August 6, 2004. COPYRIGHT MATERIAL OMITTED Donnal S. Mixon, Assistant Federal Public Defender, Medford, 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-00-00433-JE. Before ALARCON, FERGUSON, and RAWLINSON, Circuit Judges. Opinion by Judge RAWLINSON; Dissent by Judge FERGUSON. RAWLINSON, Circuit Judge. 1 Jimmie Lee Custer appeals the District Court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction for sodomy in the first degree. Custer's claim that the Oregon court violated his rights under the Fifth Amendment fails. Custer was not subjected to double jeopardy when Oregon prosecuted Custer for engaging in sodomy with his stepson between November 1, 1986 and June 19, 1987, after…