Gooding v. Third Judicial Dist.
1990 WL 254931
D.Kan.,1990.
Dec. 5, 1990. (Approx. 1 page)
United
States District Court, D. Kansas.
Ronald R. GOODING,
Petitioner,
v.
THIRD JUDICIAL
DISTRICT, et al., Respondents.
No. 90-3470-S.
Dec. 5, 1990.
William K. Rork, Topeka, Kan., for petitioner.
ORDER
SAFFELS, District Judge.
*1 The present case involves a
petition for writ of habeas corpus which is now ready for disposition. This
court issued a show cause order, respondents filed their answer and return, and
petitioner filed a traverse. Having reviewed the record, the court finds the
petition should be dismissed and all relief denied.
Petitioner's writ is based on a claim that further criminal prosecution
violates his protection, under the Fifth and Fourteenth Amendments, against
repeated prosecution for the same offense. Petitioner's first criminal trial
ended in a mistrial on petitioner's motion.
When the defendant requests a mistrial, there is no double jeopardy bar to
reprosecution except under the narrow exception set forth in Oregon v.
Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), where the
prosecutor intentionally provokes or goads the defendant into requesting a
mistrial. Id., 456 U.S. at 679. This prosecutorial intent is critical.
Absent such intent, the exception does not apply, even if there is prosecutorial
overreaching or misconduct sufficient to warrant a mistrial. Id., 456
U.S. at 675-76. This intent based standard necessarily involves a factual
finding by the trial court regarding prosecutorial conduct. Id. at 675. See
also United States v. Poe, 713 F.2d 579, 583 (10th Cir.1983).
In the present case, the trial court granted petitioner's request for a
mistrial, but specifically found no intentional misconduct on the part of the
prosecutor. Instead, the trial court found the circumstances supporting the mistrial
resulted from poor communication between petitioner's attorney and the
prosecutorial team. Petitioner then filed a motion to dismiss all criminal
charges, and presented the state court with additional instances of
prosecutorial misconduct in an attempt to demonstrate the narrow exception in Oregon
v. Kennedy was applicable. In denying the motion to dismiss, the state
court specifically found the requisite prosecutorial intent lacking in this
case, and also found petitioner's argument for dismissal based on outrageous
prosecutorial conduct to be without merit.
Petitioner sets forth an extensive recitation of fact and argument to
demonstrate intentional prosecutorial misconduct. However, federal courts in
habeas proceedings are to apply a presumption of correctness to state court
findings of fact. 28 U.S.C. § 2254(d). Additionally, the court finds
petitioner's allegation of prosecutorial intent to provoke or goad the
defendant into requesting a mistrial is not supported by the record.
Further, as in U.S. v. McMurry, 818 F.2d 24 (10th Cir.1987), the court
finds it does not need to address whether gross prosecutorial negligence alone
triggers the double jeopardy bar because the record does not demonstrate that
the conduct of the prosecutors rose to the level of gross negligence.
IT IS THEREFORE ORDERED that the petition is dismissed and all relief denied.
The clerk of the court is directed to transmit a copy of this order to the
parties herein and to the office of the Attorney General for the State of Kansas.
D.Kan.,1990.
Gooding v. Third Judicial Dist.