Saddler v. Conant

          ORDER RE PETITION FOR WRIT OF HABEAS CORPUS

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE.

         Before the Court at Docket 23 is Petitioner Thomas R. Saddler's Merit Brief in Support of Petition for Writ of Habeas Corpus. Respondent John Conant filed a response at Docket 30, to which Mr. Saddler replied at Docket 33. The Petition was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B).

         On April 18, 2016, at Docket 36, Magistrate Judge Deborah M. Smith issued an Initial Report and Recommendation. The magistrate judge recommended that the petition be denied and that this action be dismissed with prejudice. Mr. Saddler filed objections to the Initial Report and Recommendation at Docket 37, to which the Government filed a response at Docket 38. The magistrate judge issued a Final Report and Recommendation at Docket 40 on April 4, 2017, which addressed the objections and recommended that the Petition for Writ of Habeas Corpus be denied.

         The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute provides that a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”^[1] A court is to “make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made.”^[2] But as to those topics on which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.”^[3]

         DISCUSSION

         Mr. Saddler's First Amended Petition for Writ of Habeas Corpus raises the following questions:

1. “Where the doctrine of judicial estoppel is neither uniformly accepted nor applied and where the court of appeals failed to delineate the requirements for the application of the doctrine, did the court of appeals err in” holding that judicial estoppel prevented Mr. Saddler from pursuing his claim regarding double jeopardy?

2. When “five jurors indicate that they were ‘unavailable' if the trial . . . was continued 45 days, ” does that alone “establish a manifest necessity for a mistrial”?

3. “Did the court of appeals err in affirming the trial court, where both courts' analysis of the concept of prejudice in a post-conviction case was inconsistent with the degree of autonomy a defendant otherwise has, in a criminal prosecution?”^[4]

         The Initial Report and Recommendation concluded that it could properly review the merits of Mr. Saddler's double jeopardy claim because the Alaska Court of Appeals' decision did not rest on adequate state law grounds.^[5] But in reviewing the merits of Mr. Saddler's double jeopardy claim, the Initial Report and Recommendation held that the state trial judge “did not violate or unreasonably apply clearly established Supreme Court double-jeopardy caselaw.”^[6] The Initial Report and Recommendation also found that because the record establishes that Mr. Saddler did not present to the Alaska Court of Appeals his argument regarding his attorney's failure to advise him to take an interlocutory appeal on his double jeopardy claim, Mr. Saddler has not exhausted that claim, and thus it is not properly before the Court.

         In response, Mr. Saddler filed timely objections, asserting that:

1. “The Initial Report and Recommendation fails to accurately account for the sequence of events which led to the mistrial decision.”^[7]

2. The Initial Report and Recommendation mistakenly finds that the Alaska Court of Appeals based its decision on independent state grounds, as “there can be no procedural default as long as the state court reviews the merits of the federal claim.”^[8]

3. The Initial Report and Recommendation “relies on unreasonable factual findings to uphold the mistrial declaration and misconstrues the manifest necessity standard.”^[9]

4. The Initial Report and Recommendation mistakenly finds that Mr. Saddler did not “exhaust his Sixth Amendment claims at all stages of post-conviction review.”^[10]

         The Government filed a response to Mr. Saddler's objections, which asserted that the Court should overrule Mr. Saddler's objections to the Initial Report and Recommendation. The magistrate judge then issued a Final Report and Recommendation that addressed each of Mr. Saddler's objections and continued to recommend that the petition for writ of habeas corpus be denied.^[11] Pursuant to 28 U.S.C. § 636(b)(1), the Court will make a de novo determination of each of Mr. Saddler's objections.

         1. Factual Objections

         Mr. Saddler objects to the magistrate judge's description of certain facts. He maintains the following facts were omitted: (1) Mr. Saddler's trial counsel “made it abundantly clear that he would be raising a double jeopardy challenge”; (2) trial counsel “ultimately consented to a continuance before the jurors reassembled”; (3) the trial judge “declared a mistrial less than a minute after the jurors reassembled” and without soliciting input from the attorneys; (4) “the trial judge acknowledged in a written order that his mistrial decision was insufficient to support a showing of manifest necessity”; and (5) “the trial judge reinstated the charges anyway based on a plainly erroneous legal theory that was rejected by the Alaska Court of Appeals.”^[12]

         Upon de novo review of the record, the Court finds that Mr. Saddler's trial counsel, Joshua Fannon, stated at least twice that if the trial court declared a mistrial, he would “make a double jeopardy argument.”^[13] But Mr. Fannon also acknowledged that if he were responsible for the delay, “I think that it would stop me from being able to make a double jeopardy argument.”^[14] The trial judge then stated on record that he could not make a finding as to who was at fault for the missing discovery. As a result, the trial judge informed the attorneys that they could either take a continuance or proceed with trial: “So your choice is to take the continuance-if the jury's not available, I'll probably have to call a mistrial in the interest of justice.”^[15] Mr. Fannon then “accept[ed] the court's proposal for a continuance” and did not reassert a double jeopardy argument prior to the judge's declaration of a mistrial. Accordingly, on de novo review, the Court finds that while Mr. Fannon did state he would make a double jeopardy argument, he did not make his intent “abundantly clear.”

         Second, upon de novo review and as noted in the preceding paragraph, the Court finds that Mr. Fannon did ultimately consent to a continuance before the jurors reassembled. However, the Court notes that Mr. Fannon asserted that a continuance was an inadequate remedy several times during the proceeding.^[16] Both he and the trial court expected that a lengthy continuance would not be feasible. The trial judge warned the attorneys before he summoned the jury that “if the jury's not available, [the court would] probably have to call a mistrial in the interest of justice.”^[17] The trial judge also voiced considerable doubt that all of the jurors would be available 45 days later: “I mean, my-I would be shocked if all 14 of them are willing to hang around on this case for 45 days.”^[18]

         As to the third objection, on de novo review the Court finds that the trial judge declared a mistrial almost immediately after the jury had reassembled and five jurors indicated their unavailability. The judge did not solicit the attorneys' input at that time, but no attorney raised any objection. And after the jury had been excused, the lawyers remained silent on the double jeopardy issue and began coordinating how to exchange the missing discovery.^[19] Yet the record also reflects that there had been considerable discussion about the likelihood of a mistrial between the court and counsel before the jury returned to the courtroom that day.

         Fourth, upon de novo review, the Court finds that the trial judge issued a written order on November 14, 2005, in which he concluded that there was manifest necessity to declare a mistrial but that “the court had an inadequate record on which to find that it was manifestly necessary to declare a mistrial.”^[20] Material to the trial judge's decision at that time was the state's failure to file an opposition to the motion, and thus the state's apparent concession that the trial court should have further inquired into the reasons the five jurors were unavailable. The state then filed a motion for reconsideration of that order, which the trial court granted.^[21] Here, in the November 14, 2005 order the trial court found that there was manifest necessity for a mistrial, but the court had an inadequate record on which to find that it was manifestly necessary. However, the Alaska Court of Appeals, after reviewing the record, found the record adequate to support the mistrial.^[22]

         Fifth, upon de novo review, the Court agrees that the trial judge reinstated the charges based on Alaska Criminal Rule 27, a legal theory that the Alaska Court of Appeals rejected in Friedmann v. State.^[23]

         Although the Court agrees with some of Mr. Saddler's recitation of the facts, the Court finds that these additional facts have no bearing on the Court's conclusion described below that the trial judge in declaring the mistrial did not violate or unreasonably apply clearly established federal law as determined by Supreme Court precedent.

         None of the facts identified by Mr. Saddler in his objections undermines the conclusion that Mr. Fannon knew of the missing discovery before the jury was impaneled, but waited until after the jury had been sworn to bring the issue to the trial judge's attention and request a continuance.^[24] The Court agrees with the magistrate judge's conclusion that Mr. Fannon's delay suggests the need for a mistrial was created, at least in part, by Mr. Fannon's decision to delay notifying the trial court of the need for a continuance until after the jury had been impaneled.^[25]

2. Independent and Adequate State Grounds

         Mr. Saddler's second objection maintains that there was no procedural default because the Alaska Court of Appeals reached the merits of Mr. Saddler's federal double jeopardy claim.^[26]

         A federal habeas court will not consider an issue of federal law from a judgment of a state court “if that judgment rests on a state-law ground that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.”^[27] However, a state court “‘need not fear reaching the merits of a federal claim in an alternative holding, ' as long as the court also articulates ‘a state holding that is a sufficient basis for the state court's judgment, ' even when the state court also relies on federal law.”^[28] Here, the state court did just that. The Alaska Court of Appeals held that “Saddler is estopped from pursuing his claim that Judge Smith failed to conduct a sufficient inquiry into the unavailability of the jurors . . . [because] Saddler's attorney invited the error.”^[29] The Alaska Court of Appeals then added “[I]n any event, Judge Smith could reasonably conclude that there was a manifest necessity for the mistrial.” That the court reached the merits of Mr. Saddler's federal double jeopardy claim in an alternative holding does not alter the fact that it independently rested its judgment on state procedural grounds.^[30]

         However, the Court agrees with the magistrate judge that the state grounds were inadequate, as it is not apparent that the Alaska Court of Appeals applied a “firmly established and regularly followed” state procedural rule when it applied estoppel to Mr. Saddler's double jeopardy claim.^[31] Mr. Saddler's objection on this point is thus moot, and the Court will review the merits of his federal double jeopardy claim.

         3. Double Jeopardy

         Mr. Saddler's third objection maintains that the magistrate judge “relies on unreasonable factual findings to uphold the mistrial declaration and misconstrues the manifest necessity standard.”^[32]

         Both parties agree that the Perez standard of manifest necessity should apply to the trial judge's declaration of a mistrial.^[33] But Mr. Saddler argues that a reviewing court may not extrapolate facts not identified by the trial judge to support a finding of manifest necessity. Rather, he maintains that the trial judge is required to “make efforts to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.”^[34] Mr. Saddler asserts that by its own admission in the November 14, 2005 order, the trial judge “had an inadequate record on which to find that it was manifestly necessary to declare a mistrial.”^[35] Then, according to Mr. Saddler, the Alaska Court of Appeals erred by extrapolating several additional facts in the record that were never identified by the trial judge to support its holding of manifest necessity.

         The magistrate judge found that the trial judge's conduct “was well within the broad discretion granted to him by U.S. Supreme Court precedent.”^[36] The magistrate judge also emphasized the highly deferential standard of review for federal habeas petitions, noting that the trial judge's “mistrial ruling and the Alaska Court of Appeal's affirmance of that decision is entitled to dual layers of deference.” Accordingly, the magistrate judge recommends the rejection of Mr. Saddler's double jeopardy claim.^[37]

         The Court adopts and agrees with the magistrate judge's well-reasoned analysis of the double jeopardy claim, with the following additional comments:

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may not grant a writ of habeas corpus unless the state court's decision on the merits of the constitutional claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”^[38] “[A]n unreasonable application of federal law is different from an incorrect application of federal law.”^[39] “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”^[40] Accordingly, AEDPA “imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state-court decisions be given the benefit of the doubt.'”^[41]

         This “highly deferential standard” is at its height when evaluating whether a trial court abused its broad discretion in the double jeopardy context, because the Supreme Court has held that in this context there is greater potential for “reasoned disagreement among fair-minded judges.”^[42] In Renico v. Lett, the trial judge received a note from the jury asking “what if we can't agree?” After briefly confirming that the jury could not reach a unanimous verdict, the trial judge declared a mistrial without making a specific finding of manifest necessity or developing the record. The trial court then scheduled a new trial, at which Mr. Lett was convicted. The state's highest court in the state affirmed Mr. Lett's conviction and found that the trial judge exercised his “sound discretion” in declaring the mistrial. The state supreme court also cited to facts in the record that supported a mistrial determination that had not been identified by the trial court.^[43] On federal habeas review, the U.S. Supreme Court upheld the state court's ruling and held that the state court's decision was not unreasonable under established Supreme Court precedent. The Court added that under Supreme Court precedent, “a trial judge declaring a mistrial is not required to make explicit findings of ‘manifest necessity' nor to ‘articulate on the record all the factors that informed ...