Christopher Deedy v. Russell Suzuki ( 2019 )

FILED
UNITED STATES COURT OF APPEALS
DEC 20 2019
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRISTOPHER DEEDY, No. 18-16632
Petitioner-Appellee, D.C. No.
1:18-cv-00094-DKW-RLP
v. District of Hawaii,
Honolulu
RUSSELL A. SUZUKI et al.,
Respondents-Appellants. ORDER
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
The memorandum disposition filed on November 7, 2019, is amended by the
majority memorandum disposition and by Judge Smith’s partial dissent filed
concurrently with this order.
With these amendments, the panel has voted to deny Appellee’s petition for
panel rehearing and rehearing en banc, Docket Entry No. 35, and to deny
Appellants’ petition for rehearing en banc, Docket Entry No. 36.
The full court has been advised of the petitions for rehearing en banc, and no
judge of the court has requested a vote on them.
Appellee’s petition for panel rehearing and rehearing en banc and
Appellants’ petition for rehearing en banc are DENIED. No further petitions for
panel rehearing or rehearing en banc may be filed.
FILED
NOT FOR PUBLICATION
DEC 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DEEDY, No. 18-16632
Petitioner-Appellee, D.C. No.
1:18-cv-00094-DKW-RLP
v.
RUSSELL A. SUZUKI et al., AMENDED MEMORANDUM*
Respondents-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted October 21, 2019
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
Petitioner Christopher Deedy filed a 28 U.S.C. § 2241 habeas petition,
seeking, on double jeopardy grounds, to prevent the State of Hawaii from retrying
him on charges of manslaughter, first-degree assault, and second-degree assault.
The district court granted his petition, holding that the trial court had acquitted
Petitioner of all three charges at his first trial. The State timely appeals.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Reviewing de novo, Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009), we
affirm in part and reverse in part.
1. The Rooker-Feldman doctrine did not bar the district court from
exercising jurisdiction over the § 2241 petition. We rejected this jurisdictional
argument in Gouveia v. Espinda, 926 F.3d 1102, 1107–10 (9th Cir. 2019).
2. Petitioner did not forfeit his double jeopardy claim as to manslaughter.
Before his second trial for second-degree murder began, Petitioner moved for the
trial court not to instruct the jury on manslaughter, arguing that doing so would put
him in double jeopardy for that offense. And Petitioner renewed that argument at
the charge conference.
3. The Double Jeopardy Clause forbids the State from retrying Petitioner for
manslaughter because he was acquitted of manslaughter at his first trial. An
acquittal encompasses "any ruling that the prosecution’s proof is insufficient to
establish criminal liability for an offense." Evans v. Michigan, 568 U.S. 313, 318
(2013). At the first trial, the trial court explicitly stated that there was no evidence
in the record to support instructing the jury on manslaughter, and the court did not
instruct the jury on manslaughter.
Although federal law determines whether a prosecution violates the Double
Jeopardy Clause, the Supreme Court has looked to state law to determine whether a
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state court’s decision constituted an acquittal. Id. at 320. Hawaii law requires trial
courts to instruct juries on any lesser-included offense that has "a rational basis in
the evidence," regardless of whether "the prosecution requests, or the defense
objects to, such an instruction." State v. Adviento, 319 P.3d 1131, 1148 (Haw.
2014) (quoting State v. Haanio, 16 P.3d 246, 248 (Haw. 2001)). Under Hawaii
law, manslaughter is a lesser-included offense of second-degree murder. Thus, by
explicitly stating that there was no evidence to support a manslaughter instruction,
and by refusing to instruct the jury on manslaughter, the trial court determined that
the State’s proof was insufficient to establish Petitioner’s criminal liability for that
offense. It does not matter that the trial court did not label the ruling an "acquittal"
or that the ruling might have been (according to the State) wrong. See Evans, 568
U.S. at 318, 325 (stating that an acquittal precludes retrial "even if the acquittal is
based upon an egregiously erroneous foundation" (internal quotation marks
omitted)).
4. Assuming, without deciding, that Petitioner did not forfeit his double
jeopardy claims as to the two assault charges, the Double Jeopardy Clause does not
forbid the State from retrying him. At first glance, the trial court’s decision not to
instruct the jury on assault at the first trial appears to represent, under the Adviento
rule, an implicit determination that the State’s proof was insufficient to convict
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Petitioner of either assault charge. But, during the charge conference at the second
trial, the trial court explained that it was legally unclear at the time of the first trial
whether assault was a lesser-included offense of second-degree murder under
Hawaii law. The Hawaii Supreme Court answered that question affirmatively well
after the first trial ended. State v. Kaeo, 323 P.3d 95, 96 (Haw. 2014).
Thus, we know that "the substance of [the] court’s decision" was not a
determination that the State failed to introduce sufficient evidence to convict
Petitioner of the assault charges. Evans, 568 U.S. at 322. Accordingly, because
there was a hung jury on the assault charges at the second trial, the State may retry
Petitioner again for first- and second-degree assault.
5. In his petition for rehearing, Petitioner argues that the State abandoned its
opportunity to retry the assaults or is estopped from doing so. The district court
may consider those arguments on remand.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. The
parties shall bear their own costs on appeal.
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FILED
Deedy v. Suzuki DEC 20 2019
No. 18-16632 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
M. SMITH, Circuit Judge, concurring in part and dissenting in part:
In my view, the abandonment theory advanced by Petitioner is indistinguishable
from his double jeopardy claims and need not be considered on remand. In any
case, even if we were to consider his argument separately, Petitioner cannot point
to any “deliberate trial strategy” employed by the prosecution to prevent a jury
from considering the assault charges. United States v. Cavanaugh, 948 F.2d 405,
417 (8th Cir. 1991). At the first trial, the assault charges were not discussed by any
of the parties or the judge, and at the second trial, the jury was instructed on assault
and could not reach a verdict. See United States v. Richardson, 468 U.S. 317, 318,
324–25 (1984).
Petitioner’s collateral estoppel argument at the district court level only pertains to
his reckless manslaughter charge, and because we have affirmed the district court’s
grant of the writ on that charge, there is nothing left for the district court to
consider upon remand. Petition for Writ of Habeas Corpus at 23–26, Deedy v.
Suzuki, 326 F. Supp. 3d 1022 (D. Haw. Apr. 6, 2018) (No. 1:18-cv-00094-DKW-
RLP).
Respectfully, I would reject Petitioner’s abandonment and estoppel arguments,
rather than allow them to be considered upon remand.