James Wilkinson v. Doug Gingrich ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES KENDELL WILKINSON, No. 13-56952
Petitioner-Appellee,
D.C. No.
v. 8:12-cv-01441-
GAF-FFM
DOUG GINGRICH, Orange County
Probation, ORDER AND
Respondent-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
July 7, 2015—Pasadena, California
Filed September 3, 2015
Amended November 3, 2015
Before: William A. Fletcher, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Order;
Opinion by Judge W. Fletcher
2 WILKINSON V. GINGRICH
SUMMARY*
Habeas Corpus
The panel filed an amended opinion, denied a petition for
panel rehearing, and denied on behalf of the court a petition
for rehearing en banc, in a case in which the panel affirmed
the district court’s judgment granting James Kendell
Wilkinson’s habeas corpus petition challenging his conviction
for perjury for testifying in a traffic court proceeding that he
was not the driver of a car that had been stopped for speeding.
The State of California brought the perjury prosecution
after Wilkinson was acquitted of the speeding offense. The
panel agreed with the district court that the state appellate
court unreasonably applied Ashe v. Swenson, 397 U.S. 436(1970), when it held that Wilkinson’s acquittal in traffic court
did not bar the subsequent perjury prosecution. The panel
held that the traffic court actually and necessarily decided, in
Wilkinson’s favor, an issue that was critical to both the traffic
court and perjury proceedings—that Wilkinson was not the
driver of the speeding car—and that the State was therefore
precluded by the Double Jeopardy Clause from bringing the
perjury prosecution.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILKINSON V. GINGRICH 3
COUNSEL
Kamala D. Harris, Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Peter Quon, Jr. (argued) and
Kevin R. Vienna, Supervising Deputy Attorneys General;
Office of the Attorney General, San Diego, California, for
Respondent-Appellant.
Hilary Potashner, Acting Federal Public Defender; K.
Elizabeth Dahlstrom (argued), Deputy Federal Public
Defender, Office of the Federal Public Defender, Santa Ana,
California, for Petitioner-Appellee.
ORDER
The opinion filed on September 3, 2015, and published at
800 F.3d 1062, is hereby amended and replaced by the
amended opinion filed concurrently with this order. With
these amendments, all judges on the panel have voted to deny
the petition for panel rehearing. The petition for panel
rehearing is DENIED. The petition for rehearing en banc was
circulated to the judges of the court, and no judge requested
a vote for en banc consideration. The petition for rehearing
en banc is therefore DENIED. Fed. R. App. P. 35. No
further petitions for rehearing or rehearing en banc will be
entertained.
4 WILKINSON V. GINGRICH
OPINION
W. FLETCHER, Circuit Judge:
The State of California appeals the district court’s grant
of James Kendell Wilkinson’s petition for a writ of habeas
corpus.1 Wilkinson was convicted of perjury for testifying in
a traffic court proceeding that he was not the driver of a car
that had been stopped for speeding and whose driver had been
ticketed. The State brought the perjury prosecution after
Wilkinson was acquitted of the speeding offense. We agree
with the district court that the state appellate court
unreasonably applied Ashe v. Swenson, 397 U.S. 436 (1970),
when it held that Wilkinson’s acquittal in traffic court did not
bar the subsequent perjury prosecution. See 28 U.S.C.
§ 2254(d)(1). The principle of collateral estoppel embodied
in the Fifth Amendment’s protection against double jeopardy,
as clearly established in Ashe, precludes relitigation of
ultimate issues that were necessarily decided in a prior
proceeding between the parties. Ashe, 397 U.S. at 443. In
this case, the traffic court necessarily decided, in Wilkinson’s
favor, an issue that was critical to both the traffic court and
perjury proceedings—that Wilkinson was not the driver of the
speeding car. The State was therefore precluded by the
Double Jeopardy Clause from bringing the perjury
prosecution.
1
Wilkinson filed his habeas petition under the name “James Kendell
Wilkinson.” In other documents in the record, including the jury form
from the conviction he collaterally attacks, his name appears as “James
Kendall Wilkinson.”
WILKINSON V. GINGRICH 5
I. Background
A. The Traffic Court Proceeding
On January 20, 2007, Officer Mark Magrann of the
California Highway Patrol pulled over a car he recorded
traveling at 101 miles per hour, well over the speed limit.
The driver identified himself as Kendall Wilkinson and
presented a United Kingdom driver’s license bearing that
name. The license did not include a photograph. The car was
registered to Charmaine Wilkinson,2 who was a passenger in
the car and who is married to the appellant. Charmaine
testified in the later perjury trial that Kendall Wilkinson is her
husband’s cousin. During the brief traffic stop, the driver
remarked to Officer Magrann that traveling at high speeds is
normal in other countries. Officer Magrann issued a citation
that ordered the driver to appear in Superior Court (the
“traffic court”) for a hearing. The signature on the citation
appears to read “J. Wilkinson.”
When the driver did not show up for the scheduled
hearing, the traffic court issued an arrest warrant for “Kendal
[sic] Wilkinson.” The sheriff’s department arrested
Wilkinson on the warrant.
The traffic court held a trial on July 30, 2007, at which
Wilkinson and Officer Magrann appeared. There is no
transcript of the trial, but the parties do not dispute the
essentials of what transpired. Wilkinson testified that he was
not the driver of the car. He also provided a Nevada license
bearing the name “James Kendell Wilkinson” and a
photograph. Both Officer Magrann and the judge examined
2
Charmaine also goes by the name “Deborah Charmaine Wilkinson.”
6 WILKINSON V. GINGRICH
the driver’s license. Officer Magrann testified in the later
perjury trial that the photograph on the Nevada driver’s
license “appear[ed] to be” Wilkinson. He testified further
that “once [Wilkinson] put that driver’s license down with the
different name, different date of birth, it was authentic, I’ve
seen Nevada driver’s licences before and it just made me
question—made me doubt as to whether he was actually
driving the vehicle.” Officer Magrann recounted that he had
testified in traffic court that he was “approximately . . . about
98 percent sure” that Wilkinson had been the driver.
The traffic court judge acquitted Wilkinson. The
following entry appears on the court’s docket sheet: “The
Court finds the defendant NOT GUILTY as to all counts as
charged in the Original Citation. The person in court states
that they are not the same person named in the Citation.”
After the traffic court hearing ended, Officer Magrann
spoke with Wilkinson in the hallway. Wilkinson noted that
driving over one hundred miles per hour is not a big deal in
other countries. Wilkinson spoke with what Officer Magrann
described as the same arrogance of the driver he had stopped.
At that point, it “clicked” for Officer Magrann, and he
concluded that Wilkinson had indeed been the driver.
B. The Perjury Proceeding
The next day, Officer Magrann initiated an investigation
of Wilkinson. About six months later, nine or ten police
officers, with their guns drawn, broke down the door to
execute a search warrant at Wilkinson’s home. Once inside
the home, the officers discovered folders containing traffic
citations. One folder was labeled “Jim’s tickets.” Another
folder was labeled “Kendall Wilkinson,” and contained the
WILKINSON V. GINGRICH 7
speeding ticket from January 20, 2007. Police also
discovered a ticket issued to Reginald Freuchet, a French
citizen. Charmaine testified during the perjury trial that
Freuchet had stayed at their house and driven her husband’s
car, and that he had features similar to those of her husband.
The State charged Wilkinson with perjury in violation of
California Penal Code § 118(a). At the start of the perjury
trial, Wilkinson objected that the prosecution was barred by
collateral estoppel and the Double Jeopardy Clause. The trial
judge overruled the objection, reasoning that “if the court
were to accept the theory of collateral estoppel, then the end
result would mean that nobody could ever be prosecuted for
perjury if they were successful in maintaining the perjury or
the fraud.”
In his testimony, Officer Magrann recounted what had
happened in the traffic court trial and identified Wilkinson as
the driver he stopped on January 20, 2007. Charmaine
testified that Kendall, her husband’s cousin, was the driver
and that she had not spoken to him since the day of the stop.
Wilkinson testified that he was not the driver. Kendall did
not testify or otherwise appear.
The trial judge instructed the jury that, in order to convict
Wilkinson of perjury, it must find, among other things, that
Wilkinson “willfully stated that the information was true even
though he knew it was false,” and that when “[Wilkinson]
made the false statement, he intended to testify falsely while
under oath.” The judge also informed the jury that “[t]he
People allege that the defendant made the following false
statement: that he was not the driver of the vehicle on January
20th, 2007.”
8 WILKINSON V. GINGRICH
The jury convicted Wilkinson. He was sentenced to
forty-five days in the county jail and three years of probation.
The California Court of Appeal affirmed Wilkinson’s
conviction. The court discussed several state court opinions
refusing to apply collateral estoppel to subsequent perjury
prosecutions for fear of incentivizing or rewarding perjury.
The Court of Appeal wrote, however, that there was no need
to “wade into the thicket of competing policy considerations”
because Wilkinson had not established the “threshold
requirements of collateral estoppel.” The court held that
collateral estoppel did not bar the perjury prosecution because
Wilkinson had not shown that the traffic court judge
necessarily determined that he testified truthfully in traffic
court. The Court of Appeal reasoned that the traffic court
judge did not necessarily make a finding as to Wilkinson’s
veracity because it could have acquitted Wilkinson based on
Officer Magrann’s doubt about whether Wilkinson was the
driver. The court wrote that the Supreme Court’s decision in
Ashe v. Swenson had “limited application” to Wilkinson’s
case because the Ashe defendant’s veracity was not at issue,
and therefore not necessarily decided, in the first trial.
C. Federal Habeas Proceedings
After the California Supreme Court denied Wilkinson’s
petition for review, Wilkinson filed a habeas petition in
federal district court under 28 U.S.C. § 2254. He claimed,
among other things, that because of his acquittal in the traffic
court proceeding the State was collaterally estopped, and
therefore barred by the Double Jeopardy Clause, from
prosecuting him for perjury. The magistrate judge agreed and
recommended granting Wilkinson’s petition. According to
the magistrate judge, the state court unreasonably applied
WILKINSON V. GINGRICH 9
Ashe v. Swenson when it failed to recognize that the traffic
court judge necessarily decided an issue of ultimate fact in
the traffic court proceeding that was also an issue of ultimate
fact in the perjury trial—whether Wilkinson was the driver.
The district court adopted the magistrate judge’s
recommendation and entered judgment granting a writ of
habeas corpus. The State timely appealed. After filing his pro
se answering brief in this court, Wilkinson moved for the
appointment of counsel. We appointed counsel, who filed a
replacement answering brief on Wilkinson’s behalf.
II. Standard of Review
We review de novo the district court’s grant of a § 2254
habeas petition. Doody v. Ryan, 649 F.3d 986, 1001 (9th Cir.
2011) (en banc). Pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), a federal court may
not grant a habeas petition unless, as is relevant here, the state
court unreasonably applied law clearly established by the
Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 413 (2000). “[U]nder the
‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Moses v. Payne, 555 F.3d 742, 751
(9th Cir. 2009) (alterations in original) (quoting Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). An “unreasonable
application” of Supreme Court law “must be ‘objectively
unreasonable,’ not merely wrong; even ‘clear error’ will not
suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(quoting Andrade, 538 U.S. at 75–76).
10 WILKINSON V. GINGRICH
III. Discussion
A. Collateral Estoppel and Ashe v. Swenson
Collateral estoppel is “an integral part of the protection
against double jeopardy guaranteed by the Fifth and
Fourteenth Amendments.” Harris v. Washington, 404 U.S.
55, 56 (1971) (per curiam). Collateral estoppel “means
simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit.” Ashe, 397 U.S. at 443; see Wilson v. Belleque,
554 F.3d 816, 830 (9th Cir. 2009) (“In a criminal case,
collateral estoppel precludes the state from bringing a charge
when a previous ‘jury resolve[d], in a manner adverse to the
government, an issue that the government would be required
to prove in order to obtain a . . . conviction at the second
trial.’” (alterations in original) (quoting United States v.
Castillo-Basa, 483 F.3d 890, 899 (9th Cir. 2007))). In
determining whether an issue of ultimate fact has been
decided in a prior proceeding, we examine, “in a practical
frame,” the record and circumstances of the first proceeding.
Ashe, 397 U.S. at 444 (citation omitted); see id. (“[T]he rule
of collateral estoppel in criminal cases is not to be applied
with the hypertechnical and archaic approach of a 19th
century pleading book, but with realism and rationality.”).
The Supreme Court “significantly expanded” the
protection the Double Jeopardy Clause affords criminal
defendants when, in Ashe v. Swenson, it imported into the
Clause the doctrine of criminal collateral estoppel. Dowling
v. United States, 493 U.S. 342, 356 (1990) (Brennan, J.,
dissenting); see id. (“[I]n addition to being protected against
retrial for the ‘same offense,’ the defendant is protected
WILKINSON V. GINGRICH 11
against prosecution for an offense that requires proof of a fact
found in his favor in a prior proceeding.”). In Ashe, the
defendant was accused of robbing six participants in a poker
game. There was no doubt that a robbery occurred; the only
dispute was whether the defendant was one of the robbers.
397 U.S. at 445. After the defendant was tried and acquitted
for robbing one of the players, the state prosecuted him for
robbing a different player. The state’s evidence of the
robber’s identity was stronger in the second case, and the
defendant was convicted. Id. at 439–40. The Supreme Court
reversed the conviction, holding that if a defendant can show
that an issue of fact essential for the proof of an offense for
which the defendant is later prosecuted was necessarily
decided in a prior proceeding, that determination will be
binding upon the later prosecution. Id. at 445. An essential,
or ultimate, issue of fact in Ashe was the identity of the
robber. Because the state “had failed to prove beyond a
reasonable doubt” that the defendant was one of the robbers,
the state was barred by the doctrine of collateral estoppel
from trying the defendant for the robbery of the other poker
players, “since identity would be an ultimate issue in each
such trial.” Santamaria v. Horsley, 133 F.3d 1242, 1245 (9th
Cir. 1998) (en banc) (citing Ashe, 397 U.S. at 445).
In this case, the State argues that collateral estoppel and
the Double Jeopardy Clause did not bar the perjury
prosecution because the traffic court judge did not necessarily
decide the issue in the perjury trial—whether Wilkinson
testified truthfully in traffic court. The state Court of Appeal
was of the same view, concluding that Wilkinson’s veracity
was the ultimate issue in the perjury trial, but that it could not
know if the traffic court judge believed that Wilkinson was
being honest when he denied being the driver. We hold that
the Court of Appeal unreasonably applied Ashe v. Swenson in
12 WILKINSON V. GINGRICH
concluding that collateral estoppel and the Double Jeopardy
Clause did not apply.
The Court of Appeal failed to recognize that the driver’s
identity was necessarily at issue in both the traffic and perjury
prosecutions. In one sense, the State is correct in contending
that the two proceedings posed different questions. Narrowly
construed, the question in the traffic court proceeding was
whether Wilkinson was the driver of the speeding car, and the
question in the perjury proceeding was whether Wilkinson
gave false testimony in traffic court when he denied being
that driver. But the State is incorrect in contending that this
difference means that collateral estoppel and the Double
Jeopardy Clause do not apply. A second prosecution is
impermissible when “to have convicted the defendant in the
second trial, the second jury had to have reached a directly
contrary conclusion [to the factfinder in the first trial].”
Dowling, 493 U.S. at 348 (majority opinion).
Resolution of the issue in the first case (whether
Wilkinson was the driver) and the issue in the second case
(whether Wilkinson was telling the truth when he denied
being the driver) both turned on the factfinders’ conclusions
regarding the identity of the driver. The driver’s identity was
plainly the ultimate issue in the traffic court proceeding.
There was no dispute that the driver, whoever he was, was
speeding. The only question was whether Wilkinson was the
driver. The traffic court docket and the parties’ accounts of
what transpired in traffic court confirm that this was the only
contested issue in traffic court. The driver’s identity was also
an ultimate issue in the perjury prosecution. The jury was
instructed that it needed to find that Wilkinson knowingly
made a false statement in order to convict him of perjury.
The judge explained that the alleged false statement was that
WILKINSON V. GINGRICH 13
Wilkinson “was not the driver of the vehicle on January 20th,
2007.” If Wilkinson was not the driver, then his statement
that he was not the driver was not false, and he did not
commit perjury.
The traffic court judge in the first case “actually decided”
the ultimate issue in the second case. See Dowling, 493 U.S.
at 350. As Wilkinson contends, and as the district court
agreed, the traffic court judge acquitted Wilkinson because he
was not the driver of the car. In acquitting Wilkinson in the
first case, the traffic court judge thus actually and necessarily
decided that Wilkinson was not the driver, and that he had
been telling the truth in so stating. Collateral estoppel and the
Double Jeopardy clause apply.
The State argues that we do not know on what basis the
traffic court acquitted Wilkinson, offering three different
reasons the traffic court judge might have had for acquitting
Wilkinson: (1) he believed Wilkinson was telling the truth;
(2) he did not believe the officer was telling the truth; and (3)
he concluded that the State had not met its burden of proof.
This argument fails to recognize that each of these reasons
goes to whether Wilkinson was the driver. The traffic court
judge (1) may have believed Wilkinson was telling the truth
that he was not the driver, (2) he may have believed that the
officer was not telling the truth that Wilkinson was the driver,
or (3) he may have believed that the State had not sufficiently
proven that Wilkinson was the driver. However the traffic
court judge reached his conclusion that Wilkinson should be
acquitted, the “single rationally conceivable” basis on which
he could have done so was that Wilkinson was not the driver.
Ashe, 397 U.S. at 445.
14 WILKINSON V. GINGRICH
It does not matter that the traffic court judge might have
concluded that Wilkinson was not the driver only because the
State failed to carry its burden of proof. In both the traffic
court proceeding and the perjury proceeding, the State’s
burden of proof was beyond a reasonable doubt. A
factfinder’s determination that the government failed to carry
its burden on an issue in the first proceeding has preclusive
effect in a subsequent proceeding raising that same issue,
provided that both proceedings are governed by the same
standard of proof. See Charles v. Hickman, 228 F.3d 981,
985–86 (9th Cir. 2000); cf. Evans v. Michigan, 133 S. Ct.
1069, 1075 (2013) (noting that an acquittal includes “a ruling
by the court that the evidence is insufficient to convict” and
a “factual finding [that] necessarily establish[es] the criminal
defendant’s lack of criminal culpability” (alterations in
original) (quoting United States v. Scott, 437 U.S. 82, 91, 98
(1978)). Ashe itself held that the first jury’s determination
that “there was at least a reasonable doubt” as to an ultimate
issue precluded relitigation of that issue in a subsequent
prosecution. Ashe, 397 U.S. at 446. If we were to conclude
otherwise, “it would not only fundamentally change our
system of jurisprudence, but it would render every acquittal
by a jury meaningless for purposes of double jeopardy: a jury
can always be said to have concluded only that the
prosecution failed to prove its case beyond a reasonable
doubt.” Castillo-Basa, 483 F.3d at 902.
B. Fairminded Disagreement
AEDPA requires more than a mere mistake by the state
court. We can grant habeas relief in a case governed by
AEDPA only if the state court unreasonably applied law
clearly established by the Supreme Court. 28 U.S.C.
§ 2254(d)(1). “A state court’s determination that a claim
WILKINSON V. GINGRICH 15
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)).
The State argues that the state court’s decision, even if
based on a misapplication of Ashe, was not unreasonable
because fairminded jurists disagree about whether collateral
estoppel applies to perjury prosecutions at all, or at least
whether it applies to perjury prosecutions presenting newly
discovered evidence of a defendant’s dishonesty. For
support, the State cites several decisions of state courts that
read Ashe narrowly. One is a decision by an intermediate
Illinois appellate court whose facts are roughly similar to the
facts of this case. See People v. Briddle, 405 N.E.2d 1357,
1361–62 (Ill. App. Ct. 1980) (reinstating a perjury
prosecution against a defendant for statements he made in
traffic court about the kind of car he was driving when he was
pulled over for speeding, even though he was acquitted of the
speeding charge). Two others are decisions of the Supreme
Courts of Wisconsin and Louisiana. See State v. Canon,
622 N.W.2d 270, 277 (Wisc. 2001) (announcing a “narrow
newly discovered evidence exception to issue preclusion” in
perjury cases); State v. Bolden, 639 So. 2d 721, 725 (La.
1994) (recognizing that Ashe generally bars a perjury
prosecution when a defendant’s credibility on an issue was
necessarily decided in a prior proceeding but making an
exception for the “unique circumstance[]” of the discovery of
new evidence of the defendant’s dishonesty). However, a
state court decision is not reasonable under AEDPA simply
because another judge—or even several other judges—
arrived at the same incorrect conclusion. See Williams, 529
U.S. at 409–10.
16 WILKINSON V. GINGRICH
The Supreme Court has not applied Ashe to foreclose a
subsequent perjury prosecution, but the Court has made clear
that collateral estoppel and the Double Jeopardy Clause apply
regardless of the nature of the offense or the availability of
new evidence. First, the Court has applied the rule of Ashe to
many kinds of prosecutions, and has never limited its reach
to certain categories of criminal offenses, as the State now
suggests is appropriate. See, e.g., Harris, 404 U.S. at 56(holding that a second murder prosecution was precluded by
defendant’s acquittal in first murder trial); Turner v.
Arkansas, 407 U.S. 366, 370 (1972) (per curiam) (holding
that a subsequent prosecution for robbery was precluded by
the defendant’s prior acquittal for murder; the “case is thus
squarely controlled by Ashe v. Swenson”). In a decision
predating Ashe, the Court signaled that collateral estoppel
could bar prosecutions for perjury. See United States v.
Williams, 341 U.S. 58, 63 (1951) (“Though former jeopardy
by trial for the substantive crimes is not available as a defense
against this perjury indictment, it could be that acquittal on
the substantive charges would operate ‘to conclude those
matters in issue which the verdict determined though the
offenses be different.’” (quoting Sealfon v. United States,
332 U.S. 575, 578 (1948))). Although members of our court
have disagreed about whether the elements of collateral
estoppel have been satisfied in a particular perjury case, we
have long recognized that the rule of Ashe generally applies
to perjury prosecutions. See United States v. Castillo-Basa,
494 F.3d 1217, 1221 (9th Cir. 2007) (Callahan, J., dissenting
from the denial of rehearing en banc) (acknowledging that
“where a defendant secures an acquittal by lying about an
element of a crime, the Double Jeopardy Clause bars the
government from seeking to retry the defendant for the first
offense or prosecuting the defendant for perjury”);
Hernandez, 572 F.2d at 220.
WILKINSON V. GINGRICH 17
Second, the Supreme Court has held that collateral
estoppel applies “irrespective of whether the jury considered
all relevant evidence, and irrespective of the good faith of the
State in bringing successive prosecutions.” Harris, 404 U.S.
at 56–57; see also Castillo-Basa, 483 F.3d at 903 (“The Fifth
Amendment, as interpreted in Ashe v. Swenson, bars
relitigation of an issue already decided, no matter how much
additional evidence the government may wish to introduce at
a second proceeding.”). Indeed, in Ashe the Court made clear
that collateral estoppel applies even if the government can
marshal better evidence the second time around. See Ashe,
397 U.S. at 446 (“Once a jury had determined upon
conflicting testimony that there was at least a reasonable
doubt that the petitioner was one of the robbers, the State
could not present the same or different identification evidence
in a second prosecution for the robbery of Knight in the hope
that a different jury might find that evidence more
convincing.”).
Collateral estoppel “is a part of the Fifth Amendment’s
guarantee against double jeopardy.” Id. at 442. That
guarantee is not suspended simply because prosecutors
uncover new evidence showing that defendants who were
acquitted after taking the stand were lying when they testified
that they did not commit the charged offenses. Permitting a
perjury exception to the protection the Double Jeopardy
Clause affords a defendant would undermine the “overriding
concern” of the Clause, which is to prevent the government
“with its vastly superior resources,” from “wear[ing] down
the defendant, so that ‘even though innocent he may be found
guilty.’” Dowling, 493 U.S. at 355 (Brennan, J., dissenting)
(alteration in original) (quoting Scott, 437 U.S. at 91, 98).
The handful of state court decisions that mistakenly attempt
to carve out a special exception to the Constitution’s
18 WILKINSON V. GINGRICH
protection against double jeopardy for perjury prosecutions
do not represent “fairminded disagreement” on an open
question of constitutional law. Rather, they represent a
fundamental misunderstanding of the Double Jeopardy
Clause and the Supreme Court decisions that explain its
purpose and operation.
Conclusion
For the foregoing reasons, we hold that the state court
unreasonably applied the rule of collateral estoppel, as clearly
established in Ashe v. Swenson, when it upheld Wilkinson’s
perjury conviction. We therefore affirm the judgment of the
district court granting Wilkinson’s petition for a writ of
habeas corpus.
AFFIRMED.