Pinero v. Verdini , 123 F. App'x 410 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1197
AURELIO PINERO, JR.,
Petitioner, Appellant,
v.
PAUL H. VERDINI,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Campbell, Senior Circuit Judge,
Torruella and Selya, Circuit Judges.
Aurelio Pinero on brief pro se.
Thomas F. Reilly, Attorney General, and Daniel I. Smulow,
Assistant Attorney General, on brief for appellee.
February 22, 2005
Per Curiam. We affirm the judgment substantially for
the reasons set forth in the district court's decision, Pinero
v. Verdini, 295 F. Supp. 2d 184 (D. Mass. 2003), adding only
the following comments. At issue in this habeas petition is
whether, after a jury convicts on a lesser included offense but
deadlocks on a greater included offense, retrial of the latter
is permissible under the Double Jeopardy Clause. The
Massachusetts Appeals Court rejected petitioner's argument that
such a retrial constitutes a forbidden second prosecution for
the same offense. Commonwealth v. Pinero, 49 Mass. App. Ct.
397 (2000). On habeas review, the question is whether that
ruling "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States." 28 U.S.C. §
2254(d)(1). Neither of these standards has been met here.
As the district court explained at greater length,
petitioner was charged in separate indictments with (1) assault
and battery and (2) assault with intent to rape. A jury
convicted him of the former charge but reported that it was
unable to reach a unanimous verdict on the latter. With
petitioner's concurrence, a mistrial was declared as to the
latter charge. A second trial before a new jury was then held
on the assault-with-intent-to-rape charge, resulting in a
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conviction. Petitioner was thereafter sentenced to concurrent
prison terms on these two counts.
The double jeopardy issue arises here only because of
a mistaken jury instruction. Under Massachusetts law, assault
and battery is not a lesser included offense of assault with
intent to rape, since the latter crime does not require proof
of a physical touching. Yet at both trials the judge
instructed the jury that physical touching was an element of
that crime. As the Appeals Court concluded, "[t]his
instruction became the law of the case ... and had the effect
of making assault and battery, for purposes of this case only,
a lesser included offense of the charge of assault with intent
to rape." 49 Mass. App. Ct. at 399. The Appeals Court ended
up vacating the assault-and-battery conviction as duplicative,
while rejecting petitioner's argument that the second trial was
improper. See id. (relying on holding in Richardson v. United
States, 468 U.S. 317 (1984), that retrial following hung jury
does not violate double jeopardy).
In advancing this argument, petitioner has sought
support from a pair of Supreme Court decisions involving, not
jury deadlock, but jury silence. In Green v. United States,
355 U.S. 184 (1957), and again in Price v. Georgia, 398 U.S.
323 (1970), the Court confronted the following situation:
greater and lesser included offenses were presented to the
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jury; the jury convicted on the lesser but was silent as to the
greater (by leaving part of the verdict form blank); the
conviction was reversed and the matter remanded for retrial;
and defendant was again tried on both counts (with Green being
convicted of the greater and Price again being convicted of the
lesser). In each case, the Court ruled that, for double
jeopardy purposes, retrial had to be limited to the lesser
offense.
As the Price Court noted, this conclusion rested on
"two premises":
First, the Court [in Green] considered the
first jury's verdict of guilty on the
[lesser charge] to be an "implicit
acquittal" on the [greater charge].
Second, and more broadly, the Court
reasoned that petitioner's jeopardy on the
greater charge had ended when the first
jury "was given a full opportunity to
return a verdict" on that charge and
instead reached a verdict on the lesser
charge.
Id. at 328-29 (quoting Green, 355 U.S. at 190-91). Petitioner
disclaims any reliance on the "implicit acquittal" rationale,
for an understandable reason: "[a] jury's express statement
that it could not agree on a verdict as to the greater offense
obviously precludes the inference that there was an implied
acquittal." United States v. Bordeaux, 121 F.3d 1187, 1192 (8th
Cir. 1997).
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Instead, petitioner relies on the second "premise."
In his view, this other rationale is unconnected to any notion
of implicit acquittal; rather, it is said to apply whenever a
jury, having had a "full opportunity" to return a verdict on
the greater charge, fails to do so because of jury deadlock
(while convicting on the lesser). As the district court
observed, the dearth of relevant authority makes it difficult
to reject this argument outright-–i.e., to conclude that under
no circumstances could the second Green/Price rationale be
construed to encompass such a situation. Yet we think such a
construction highly unlikely for reasons explained in the Green
opinion.
The Court there described its second premise as
follows:
But the result in this case need not rest
alone on the assumption, which we believe
legitimate, that the jury for one reason
or another acquitted Green of [the greater
offense]. For here, the jury was
dismissed without returning any express
verdict on that charge and without Green's
consent. Yet it was given a full
opportunity to return a verdict and no
extraordinary circumstances appeared which
prevented it from doing so. Therefore it
seems clear, under established principles
of former jeopardy, that Green's jeopardy
for [the greater offense] came to an end
when the jury was discharged so that he
could not be retried for that offense.
Wade v. Hunter, 336 U.S. 684.
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Green, 355 U.S. at 191. As the citation to Wade suggests, the
Court's mention of "established principles" seems a clear
reference to an earlier part of its opinion, where it stated
that "a defendant is placed in jeopardy once he is put to trial
before a jury so that if the jury is discharged without his
consent he cannot be tried again." Id. at 188 (citing Wade).
And the Court there immediately took note of an exception to
that rule: "jeopardy is not regarded as having come to an end
so as to bar a second trial in those cases where Id. (quoting Wade, 336 U.S. at 688-89)
(emphasis added; brackets in original).
In light of this discussion, the second Green/Price
rationale is unlikely to apply to cases where the jury
deadlocks on the greater offense but convicts on the lesser.
Cf. Sattazahn v. Pennsylvania, 537 U.S. 101, 112-13 (2003)
(opinion of three Justices so suggesting); Bordeaux, 121 F.3d
at 1190-93 (so holding under mostly comparable circumstances).
For these reasons, as well as the others recited by the
district court, the state court's decision cannot be said to
have contravened or unreasonably applied clearly established
federal law as determined by the Supreme Court.
Affirmed.
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