John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections , 789 F.2d 722 ( 1986 )

FERGUSON, Circuit Judge:

Petitioner filed a petition for a writ of habeas corpus in the District Court of Arizona after exhausting all his state remedies. He contends that his conviction for first degree murder and death sentence violated various provisions of the federal Constitution. The district court denied his petition, and a panel of this court affirmed that denial, Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985). That decision was vacated when the majority of the judges of the circuit voted to have the appeal determined by an en banc panel. We reverse the district court and direct the issuance of a writ of habeas corpus.

I.

Petitioner Adamson was arrested and charged with the 1976 car bombing murder of Don Bolles, an investigative reporter in Arizona. In January 1977 Adamson and the state entered into a plea agreement¹ under which Adamson would testify against two other individuals and plead guilty to second degree murder. In exchange, Adamson would receive a sentence of 48-49 years imprisonment, with actual incarceration time to be 20 years, 2 months.

On January 15, 1977, Superior Court Judge Ben Birdsall reviewed the plea agreement, but conditioned his acceptance of its provisions until he determined the appropriateness of the sentence. Four days later, Judge Birdsall found the sentence appropriate and accepted the guilty plea and plea agreement provisions.

After the court’s acceptance of the plea agreement, for the next three years Adam-son cooperated with authorities. On the basis of Adamson’s testimony, Max Dunlap and James Robison were convicted of the first degree murder of Bolles. While the Dunlap and Robison convictions were pending on appeal, the state moved to have Adamson’s sentence imposed. Judge Bird-sall sentenced Adamson to the agreed term of 48-49 years on December 7, 1978.

On February 25, 1980, the Arizona Supreme Court reversed the convictions of Max Dunlap and James Robison and remanded the cases for new trials. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980); State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980). When the state sought to secure Adamson’s testimony in the retrials, Adam-son’s lawyer stated that his client believed that the plea agreement terminated his obligations once he was sentenced. He further stated that Adamson requested additional consideration, including release, in exchange for his testimony at the retrials.² The state, in a letter to Adamson’s attorneys dated April 9, 1980, stated that it considered Adamson to have breached the plea agreement by refusing to testify and that Adamson would be prosecuted for first degree murder.³

A few days later, the state called Adam-son as a witness at a pretrial hearing in the Dunlap and Robison retrials. Adamson reconfirmed his previous testimony concerning the Bolles killing but asserted a Fifth Amendment privilege when questioned about another crime. After examining the state’s letter of April 9, 1980, Superior Court Judge Robert L. Myers denied the state’s motion to compel Adamson to testify. Judge Myers concluded that Adamson could legitimately assert his Fifth Admendment rights unless the state granted him immunity from prosecution. Although the state sought review of Judge Myers’ denial of the motion to compel Adamson to testify, the Arizona Supreme Court declined to accept jurisdiction of the Special Action Petition. Adamson v. Superior Court, 125 Ariz. 579, 582, 611 P.2d 932, 935 (1980) (en banc).

The state filed a new information charging Adamson with first degree murder, id., which he challenged by a Special Action in the Arizona Supreme Court, id. at 579, 611 P.2d at 933. The court held that Adamson, by refusing to testify, breached the plea agreement and that he waived the defense of double jeopardy. Id. at 584, 611 P.2d at 937. The court vacated Adamson’s second degree murder sentence, judgment of conviction, and guilty plea, and reinstated the open murder charge. Following that decision, Adamson offered to accept the state’s interpretation of the agreement and to testify against Dunlap and Robison. The state refused Adamson’s offer and proceeded with the charge of first degree murder.

Adamson unsuccessfully sought federal habeas corpus review pursuant to 28 U.S.C. § 2254, and this court affirmed in an unpublished memorandum disposition the district court’s denial of the petition. Adamson v. Hill, 667 F.2d 1030 (9th Cir.1981). On October 17, 1980, Adamson was convicted of first degree murder. At sentencing, in accordance with the Arizona statute, Ariz.Rev.Stat.Ann. § 13-703(C), Judge Birdsall concluded that two aggravating circumstances — (1) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value, and (2) the defendant committed the offense in an especially heinous, cruel or depraved manner — were present to invoke a death sentence. The Arizona Supreme Court affirmed. State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). The petitioner then instituted the present federal habeas corpus proceeding.

The issues before this court are (1) whether the admission of certain evidence at trial violated the Confrontation Clause; (2) whether the Arizona statute denied the petitioner’s right to a jury trial by permitting judicial factfinding to determine eligibility for a death sentence; (3) whether the Arizona statute’s aggravating factor of heinous, cruel or depraved manner is unconstitutionally vague; (4) whether the imposition of a death sentence following Adam-son’s assertion of his Fifth Amendment rights constitutes prosecutorial or judicial vindictiveness;⁴ (5) whether the Arizona statute violates the Eighth Amendment by requiring a death sentence if aggravating circumstances are present; and (6) whether prosecution for first degree murder after Adamson’s guilty plea and conviction for second degree murder violated the prohibition against double jeopardy. Because the state’s actions violated the Double Jeopardy Clause, we do not discuss or decide the validity of the remaining issues.

II.

The Double Jeopardy Clause, which applies to state proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The clause incorporates three separate guarantees: “It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812-13, 80 L.Ed.2d 311 (1984) (citing Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980)); see United States v. Brooklier, 637 F.2d 620, 621 (9th Cir.), cert. denied, 450 U.S. 980, 101 S.Ct. 1514, 67 L.Ed.2d 815 (1980).

Implicit in the prohibition against prosecution for the same offense following conviction is the “constitutional policy of finality for the defendant’s benefit.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion); see also United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (“primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment”). Without this respect for finality, prosecutors, equipped' with substantially greater resources than most individuals, would be permitted and encouraged to reprosecute defendants when the result was any sentence short of the maximum penalty. See United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (“Underlying this constitutional safeguard is the belief that ‘the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ”) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)).

For a defendant to invoke the double jeopardy bar against a subsequent prosecution, jeopardy must have attached to the first prosecution. When the defendant forgoes the right to have guilt determined by the trier of fact and instead pleads guilty to the charged offense, under some circumstances jeopardy attaches when the judge accepts the plea. See, e.g., United States v. Vaughan, 715 F.2d 1373, 1378 n. 2 (9th Cir.1983); United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978).

Here it appears that the plea was accepted subject to certain conditions. We need not decide whether jeopardy attached upon such an acceptance, see United States v. Cruz, 709 F.2d 111, 114-15 (1st Cir.1983), because, in any event, jeopardy attached to the prosecution for second degree murder when Judge Birdsall entered a judgment of conviction and sentenced Adamson on December 7, 1978.

Double jeopardy prohibits multiple prosecutions for the same offense. As a general rule, a conviction for a lesser-included offense bars the subsequent prosecution for the greater offense. Illinois v. Vitale, 447 U.S. 410, 419-21, 100 S.Ct. 2260, 2266-68, 65 L.Ed.2d 228 (1980); United States v. Stearns, 707 F.2d 391, 393 (9th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 181 (1984). The Supreme Court, in Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977), determined that a conviction for joyriding barred the subsequent prosecution for the greater offense of auto theft because the “greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” See also Garrett v. United States, — U.S.-, 105 S.Ct. 2407, 2416, 85 L.Ed.2d 764 (1985) (Brown defendant “engaged in a single course of conduct”). To analyze this issue we must determine whether each offense “requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); see also Vitale, 447 U.S. at 416-17, 100 S.Ct. at 2265-66.

The state argues that Adamson was not subject to double jeopardy because his first conviction was for second degree murder and his second conviction was for first degree murder. If accepted, this reasoning would vitiate any protection guaranteed by the Double Jeopardy Clause. As with Brown, Adamson’s second degree murder conviction was a lesser-included offense of first degree murder. A conviction for second degree murder requires no fact that is not also needed to sustain a first degree murder conviction. Furthermore, the State of Arizona even recognizes this relationship by classifying the two types of murder as different degrees of the same crime. See Ariz.Rev.Stat.Ann. § 13-452, repealed by Laws 1977, ch. 142, § 15, effective October 1, 1978. Thus, Adamson’s double jeopardy rights were violated by the subsequent prosecution for first degree murder.

III.

The Arizona Supreme Court agreed that jeopardy attached to the second degree murder prosecution, Adamson v. Superior Court, 125 Ariz. 579, 584, 611 P.2d 932, 937 (1980), but it vacated Adamson’s conviction and sentence because it believed that he had waived his double jeopardy rights by the plea agreement. We need not resolve whether a defendant may waive double jeopardy rights in the same manner as other constitutional rights because we conclude that, even if double jeopardy protection is waivable, it was not waived in this case.

“ ‘[Cjourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (quoting Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811-12, 81 L.Ed. 1177 (1937), and Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307, 57 S.Ct. 724, 731-32, 81 L.Ed. 1093 (1937)). Before finding that a defendant has waived a right, a court must be convinced that there was “ ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” United States v. Anderson, 514 F.2d 583, 586 (7th Cir.1975) (quoting Zerbst, 304 U.S. at 464, 58 S.Ct.at 1023). In situations involving other constitutional rights, we have required a finding that the defendant’s waiver was “made voluntarily, knowingly and intelligently.” United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985) (waiver of right to jury trial). Furthermore, given the importance of the right, such waiver must be made expressly, rather than implied by conduct. Cf. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) (will not imply waiver of double jeopardy rights from guilty plea in second prosecution); Launius v. United States, 575 F.2d 770 (9th Cir.1978).

The state maintains that Adam-son waived the double jeopardy protection when he signed the agreement. It urges this court to adopt the Arizona Supreme Court’s conclusion that the plea agreement “by its very terms waives double jeopardy if ... [it] is violated.” Adamson v. Superior Court of Arizona, 125 Ariz. 579, 584, 611 P.2d 932, 937 (1980).⁵ To support this conclusion, the state argues that Adamson impliedly waived his double jeopardy claim by accepting paragraphs five and fifteen of the plea agreement. Paragraph five outlines Adamson’s obligation to testify and provides that if he refused, “this entire agreement is null and void and the original charges will be automatically reinstated.” Paragraph fifteen provides that if “this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.”

The state’s contention that these paragraphs constitute a knowing waiver of double jeopardy is without merit. It may well be argued that the only manner in which Adamson could have made an intentional relinquishment of a known double jeopardy right would be by waiver “spread on the record” of the court after an adequate explanation. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1968). Even if we were to permit a waiver by implication, the more reasonable interpretation of the agreement is that double jeopardy was not waived. The agreement contains several express waivers of constitutional rights, including the right to a jury trial, to confront and cross-examine witnesses against him, to present a defense, to have appointed counsel, to remain silent, and to be presumed innocent until proved guilty beyond a reasonable doubt. Although each of these waivers is specified in the agreement, double jeopardy is not mentioned. Furthermore, when reviewing the plea agreement, Judge Birdsall questioned Adamson at length about his waiver of the constitutional rights enumerated in the document, but did not inquire about any waiver of double jeopardy claims.

The plea agreement provides in paragraph five that “should the defendant refuse to testify ... then this entire agreement is null and void and the original charges will be automatically reinstated.” Nothing in the agreement specifies that Adamson waived any defenses he had to those charges, including the constitutional defense of double jeopardy. Agreeing that charges may be reinstituted under certain circumstances is not equivalent to agreeing that if they are reinstituted a double jeopardy defense is waived. No evidence has been presented that suggests Adamson knew he was waiving his double jeopardy defense to the reinstituted charge. The plain language of the plea agreement merely provided that under certain circumstances the charges could be reinstituted.

Even if we assume, as the state contends, that the plea agreement contained an implied waiver of double jeopardy rights, the most that could be found implied in the plea agreement is that if Adam-son did, or refused to do, something in the future, his action or inaction would constitute a waiver of his double jeopardy rights. But to meet the test of a knowing, intentional waiver there would have to be an action or inaction that Adamson knew would constitute a waiver. Simple contractual principles are ill-suited to determine whether there has been a waiver of a vital constitutional right. The state argues, in effect, that Adamson entered into a contract, and that implied in that contract was a provision that if it was ultimately determined that Adamson breached the contract, even though he did so unknowingly, the effect of the breach would be to waive his double jeopardy rights. Although unintentional breaches of contract can form the basis for damages in civil contract litigation, such principles are inappropriate to determine whether a defendant in a criminal action has knowingly and intentionally waived a constitutional right.

To constitute a knowing and intentional waiver of double jeopardy rights based on the breach of a plea agreement, the defendant’s action constituting the breach must be taken with the knowledge that in so doing he waives his double jeopardy rights. Adamson’s obligation to testify under the terms of the plea agreement was not clear and was reasonably subject to the interpretation that he and his attorney advanced. When there was a reasonable dispute as to Adamson’s obligation to testify, there could be no knowing or intentional waiver until his obligation to testify was announced by the court. In this case, the superior court had upheld his refusal to testify and it was not until the Arizona Supreme Court ruling in Adamson v. Superior Court, 125 Ariz. 579, 611 P.2d 932 (1980), that it was judicially determined that he was obligated under the plea agreement to testify. Immediately thereafter, Adamson agreed to do so.

Adamson reasonably believed that a refusal to testify did not constitute a breach of the agreement. The only unambiguous language in the agreement referring to when his obligation to testify terminated appears in paragraph eight. That paragraph provides that sentencing would occur “at the conclusion of his testimony in all of the cases.” Logic and common sense support Adamson’s position that when the state moved for sentencing, it acknowledged that his obligation to provide further testimony ended. The other provisions of the agreement support this interpretation. The state explicitly provided for two obligations that would continue past sentencing — Adamson’s waiver of early parole and his waiver of an appeal. The obligation to testify could quite reasonably be interpreted to terminate at the time of sentencing.

Even if Adamson was obligated to testify after sentencing, it was reasonable for him to believe that his assertion of his Fifth Amendment rights at the Robison and Dunlap pretrial hearings did not violate the agreement. At oral argument, the state admitted that Adamson’s attorney’s letter listing the additional demands in exchange for his testimony was not a breach of the agreement. Rather, it was Adamson’s assertion of his interpretation of the agreement. Adamson’s refusal to testify at the Dunlap and Robison pretrial hearings was in direct response to the state’s letter purporting to withdraw the protection of the plea agreement. It was reasonable for him to believe that the state’s position vitiated his obligation to testify. Furthermore, Judge Myers upheld the validity of his Fifth Amendment assertion, and the Arizona Supreme Court refused to hear the state’s appeal.

We fail to see how advancing one’s interpretation of a plea agreement without more constitutes a knowing and voluntary waiver of double jeopardy. A defendant has the right to assert a reasonable construction of an agreement that differs from the state’s interpretation. Otherwise, prosecutors would force defendants into accepting their interpretation. Adamson’s position is a reasonable reading of the agreement. The defendant, faced with the state’s letter asserting that he was no longer protected from prosecution, could hardly be expected to forgo the constitutional protection against self-incrimination, especially when the Arizona Supreme Court refused to reverse Judge Myers’ decision.

Although the Arizona Supreme Court may have correctly decided under state law that Adamson breached the agreement, its vacation of the conviction and sentence did not remove the jeopardy that attached at Adamson’s prior sentencing. The court relied on paragraph five’s provision that Adamson’s failure to testify would nullify the agreement. By its express provisions, this clause could only result in voiding the executory agreement; it has no effect on the judgment of conviction and sentence.

The state argues that this literal interpretation of the plea agreement would make the bargain illusory. Such a claim ignores available options to ensure performance. Competent drafting of the agreement was certainly a method available to the state. The agreement could have addressed the waiver issue, specifically, whether a double jeopardy defense to a reinstated charge of first degree murder would be waived and what actions of Adamson would bring about the waiver. Even absent sufficient foresight and adequate drafting, the state would have avoided the entire problem by waiting until the Dunlap and Robison prosecutions were completed before having Adamson sentenced. The state offered no reason why Adamson had to be sentenced in December 1978. In fact, there was none. Both parties had waived the time for sentencing in paragraph eight. Finally, the state could have called Adamson to testify after he agreed to do so. The state claims this last option was inadequate because Adamson’s credibility was diminished after his attorney submitted the list of additional requests. We are unpersuaded that a confessed murderer who has agreed to testify in return for a lesser punishment would have less credibility because his attorney made additional demands which were rejected by the state.

We conclude that jeopardy attached to the conviction for second degree murder and that Adamson did not knowingly and intelligently waive his double jeopardy protections.⁶

IV.

The district court is directed to issue a writ of habeas corpus freeing the petitioner from the sentence and servitude of his conviction of first degree murder and the imposition of the death sentence.

The granting of the writ will not impair in any degree the conviction and sentence of the petitioner for the second degree murder based upon his plea agreement. The petitioner does not assert any invalidity in that sentence, and indeed he cannot as his claim of double jeopardy is based upon the fact that the second degree murder conviction is valid and enforceable. See State v. Shaw, 646 S.W.2d 52 (Mo.1983) (validity of first conviction unaffected by prohibiting second prosecution); cf. Morris v. Mathews, — U.S.-, 106 S.Ct. 1032, 1038-39, 89 L.Ed.2d 187 (1986) (appellate court permitted to reduce jeopardy-barred conviction to lesser-included offense that is not jeopardy-barred). Without such a valid conviction, there could be nothing upon which double jeopardy attaches.

The judgment of the district court denying the petition for writ of habeas corpus is reversed. The district court is directed to issue a writ of habeas corpus that frees the petitioner from the death penalty. The writ shall further provide for release of the defendant from all restraint caused by his conviction of first degree murder unless the Arizona Supreme Court, on or before six months from the date of the mandate in this appeal, reinstates the conviction for second degree murder that it previously vacated. See Morris v. Mathews, 106 S.Ct. at 1038-39.

REVERSED AND REMANDED.

APPENDIX A

Terms of Plea Agreement

1. The defendant, John Harvey Adam-son, hereby agrees to plead guilty to Murder, Second Degree.

2. The statutory range of sentence for Murder, Second Degree, is probation if no sentence is imposed and ten (10) years to life if sentence is imposed.

3. The parties agree that the defendant shall receive a sentence of forty-eight (48) to forty-nine (49) years to date from June 13, 1976. The parties agree that the defendant shall be incarcerated for a total of twenty (20) calendar years and two (2) calendar months and that the sentence (48-49 years) when computed with statutory credits will not permit the defendant to complete the service of the maximum sentence of forty-nine (49) years until twenty (20) calendar years and two (2) calendar months have been passed. It is also agreed that the defendant will be incarcerated for no longer than twenty (20) years and two (2) months. Further the parties agree that the defendant will not apply for or be eligible for parole until twenty (20) calendar years and two (2) calendar months have passed. If the defendant applies for parole, the defendant agrees that this agreement is null and void and the original charges are reinstated automatically. The parties also agree that if for any reason the statutory time credits the defendant earns while incarcerated are taken away from him through no fault of his, including time spent in protective custody, whether requested by the defendant or ordered by the authorities, the sentencing Court will recompute the length of the sentence so that the defendant will not be incarcerated for any period longer than twenty (20) calendar years and two (2) calendar months.

4. The defendant hereby agrees to testify fully and completely in any Court, State or Federal, when requested by proper authorities against any and all parties involved in the murder of Don Bolles, and in the beating of Leslie Boros at the Sheraton-Scottsdale, Maricopa County, Arizona, and any and all parties involved in the crimes listed in Exhibits A and B filed with this Court as part of their agreement this date. The contents of the crimes and persons listed in Exhibits A and B shall remain sealed from public view until all of the individuals listed therein have been taken into custody or have had charges filed against them or until the State requests that the contents be made public.

5. It is agreed by all parties that the defendant shall testify truthfully and completely at all times, whether under oath or not, to the crimes mentioned in this agreement. This shall include all interviews, depositions, hearings and trials. Should the defendant refuse to testify or should he at any time testify untruthfully or if any material fact in the defendant’s transcribed statements given to the State prior to this agreement be false, then this entire agreement is null and void and the original charge will be automatically reinstated. The defendant will be subject to the charge of Open Murder, and if found guilty of First Degree Murder, to the penalty of death or life imprisonment requiring mandatory twenty-five years actual incarceration, and the State shall be free to file any charges, not yet filed as of the date of this agreement.

6. The parties agree that the State will not prosecute the defendant for the following crimes: those he will testify to which are mentioned in this agreement and listed in Exhibits A and B, which are a part of this agreement; those where the defendant’s involvement is presently known to the police and the subject of police reports; those which are material to the direct testimony of the defendant in relation to the crimes listed in this agreement and Exhibits A and B; those crimes which the defendant has revealed to the State in transcribed statements and those presently filed and now pending against the defendant. The pending cases against the defendant in the Maricopa County Superior Court will be dismissed with prejudice at the time of sentencing. The defendant is to be severed in those cases from any other defendants.

7. The parties agree that the defendant will not testify to any of the matters referred to in this agreement until Judge Birdsall has accepted all the terms and conditions of this agreement.

8. All parties to this agreement hereby waive the time for sentencing and agree that the defendant will be sentenced at the conclusion of his testimony in all of the cases referred to in this agreement and Exhibits A and B, which accompany it.

9. The parties agree that in case of the resignation, death or incapacitating illness of the Judge assigned to this case, any Superior Court Judge assigned for that purpose by the Presiding Judge of Marico-pa County may sentence the defendant in accordance with the terms of this agreement and is thereby bound by the terms of this agreement.

10. All parties agree that the sentencing of the defendant may be in any courthouse in any county seat or any other place designated by the sentencing Judge in the State of Arizona in accordance with Arizona Rules of Criminal Procedure and A.R.S. Sec. 12-130(C).

11. The parties agree that the defendant will not appeal from the judgment and sentence entered herein except as may be necessary to recompute his sentence to insure that he be incarcerated not longer than twenty (20) calendar years and two (2) calendar months. If the defendant appeals from this plea agreement except as noted herein, this plea agreement shall be null and void and all original charges are automatically reinstated.

12. It is understood by all parties at this time, and at all times in the past, that the only party with full authority to enter into any plea negotiations with the defendant herein has been William J. Schafer, III, of the office of the Arizona Attorney General, and that any offers alleged to have been tendered by any member of the office of the Maricopa County Attorney and specifically Donald W. Harris, were made without authority. It is specifically denied by counsel for the defendant that Donald W. Harris ever made any firm offer of ten (10) years actual incarceration to the defendant John Harvey Adamson in exchange for a plea of guilty.

13. The parties agree that any Federal immunity from prosecution will be in accord with the document filed by the U.S. Attorney with the Court this date.

14. The parties agree that the defendant will serve the agreed upon sentence in a prison outside the State of Arizona.

15. In the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.

16. That unless the plea is rejected or withdrawn, the defendant hereby gives up any and all motions, defenses, objections, or requests he has made or raised, or could assert hereafter, to or against the Court’s entry of judgment and imposition of sentence upon him consistent with this agreement.

17. That the defendant understands the following rights and understands that he gives up such rights by pleading guilty:

a. His right to a jury trial;

b. His right to confront the witnesses against him and cross-examine them;

c. His right to present evidence and call witnesses in his defense, knowing that the State will compel such witnesses to appear and testify;

d. His right to be represented by counsel (appointed free of charge, if he cannot affort to hire his own) at the trial of the proceedings; and

e. His right to remain silent, to refuse to be a witness against himself, and to be presumed innocent until proven guilty beyond a reasonable doubt.

18. The defendant is to remain in the custody of the Pima County Sheriff from the date of the entry of his plea until the conclusion of his testimony in all of the cases in which the defendant agrees to testify as a result of this agreement.

APPENDIX B

Letter dated April 3, 1980, from Petitioner’s Attorney to Attorney General’s Office

Stanley L. Patchell, Esq.

Assistant Attorney General

Arizona State Capitol Building

Phoenix, Arizona 85007

Re: State of Arizona vs. John Harvey Adamson

Case No. CR-93385

Dear Stan:

I am writing to confirm our telephone conversation of April 2, 1980 wherein we discussed the availability of John Adamson for interviews in preparation for his testimony in the trials of the State of Arizona vs. James Robison and Max Dunlap.

As I advised you by phone, I have met with John Adamson at his place of incarer-ation [sic] along with my law partner, Greg Martin. We had lengthy discussions revolving around his expected testimony as well as the plea agreement that he had entered into with the State of Arizona in the above-referenced case number. Further, at that time I also delivered to Mr. Adamson a complete set of transcripts of his testimony in the trial of James Robison and Max Dunlap that was previous held.

After lengthy discussions and consideration of all of the various aspects of this case and the potential ramifications to Mr. Adamson, I can advise you of the following matters:

1. John Harvey Adamson believes that he has fully complied with, and completed, his plea agreement entered into with the State of Arizona. It is, therefore, his position that his future testimony in any case involving the defendants Max Dunlap or James Robison regarding the killing of Donald Bolles will only be given upon the offer of further consideration by the State of Arizona.

2. John Harvey Adamson is well aware of the fact that he can be subpoenaed by your office to appear as a witness in any criminal matter; however, he is further aware that the fact that he may be called to the stand does not mean that he must testify. He does understand that he may be directly ordered by the Court to testify and, if he refuses do so, may be held in contempt by the Court.

3. John Harvey Adamson is further fully aware of the fact that your office may feel that he has not completed his obligations under the plea agreement in CR-93385 and, further, that your office may attempt to withdraw that plea agreement from him. He is aware that if the State were successful in doing so, that he may be prosecuted for the killing of Donald Bolles on a first degree murder charge.

4. If the State of Arizona desires to have Mr. Adamson testify in any further proceedings against James Robison or Max Dunlap, it is John Adamson’s position that the following conditions must be met:

a. The State of Arizona will agree that, upon his completion of his testimony, John Harvey Adamson will be released from custody immediately. The testimony referred to herein is, of course, testimony in an additional trial of the State of Arizona vs. Max Dunlap and possibly, testimony in a separate trial of the State of Arizona vs. James Robison. If separate trials are held, Mr. Adamson’s demand for his immediate release will apply to the completion of his testimony in whichever trial goes first. This demand is not to be considered to be contingent upon any verdict being reached in either case.

b. If the State agrees to the first condition, an additional condition will be that when John Harvey Adamson is transported to Maricopa County for his testimony in the above-referenced trial, that he will not be held in a facility of the Maricopa County Jail or the Maricopa County Sheriff’s Department. It is his demand that he be held in a non-jail facility with the agreement that there will be full time, that being 24-hour, protection by some law enforcement agency, preferably the U.S. Marshal’s office, for Mr. Adamson’s safety.

c. As a further and separate demand, John Harvey Adamson wishes to have a complete clothing outfit prior to his testimony in any trial consisting of a new suit, new shoes, socks, etc.

d. Mr. Adamson further demands that if his testimony is going to be requested by the State, his ex-wife Mary and his son be provided with protection until such time as Mr. Adamson is released from custody. Further, Mr. Adamson requests that an educational fund be set up for his son.

e. Mr. Adamson further demands that, upon his release from custody, he will be provided with suitable transportation and funds in order for him to travel to a location outside of the State of Arizona to set up a new identification and life for himself. It is anticipated that the State will work through the U.S. Attorney’s office and the U.S. Marshal’s office in an attempt to comply with this demand.

f. Further, John Harvey Adamson demands that, prior to any further testimony and/or interviews, he be provided with full and complete immunity for any and all' crimes in which he may have been involved.

The above basically describes what Mr. Adamson’s demands are for his future testimony in any case involving James Robi-son or Max Dunlap. As we have discussed many times in the past with Bill Schafer, the crimes for which John Adamson requires immunity in order to fully and completely answer any cross-examination by defense counsel, are not of such a nature that the State would be shocked for the State to extend immunity for those crimes. Further, I can represent that any immunity involved as far as any homicide case would be concerned would be an immunity from prosecution for any indirect, and unknowing, participation in any homicide.

By this letter, it is represented to you that John Harvey Adamson has not been directly involved in any actual homicide outside of the Don Bolles killing.

Again, I would like to re-emphasize the point that it is Mr. Adamson’s position that he has fully and completely, and in good faith, fulfilled all of his obligations under the plea agreement. The plea agreement was drafted in such a manner that it was anticipated to be concluded prior to Mr. Adamson’s sentencing. It is further our position that, without some type of stipulation, a Superior Court Judge will not have any jurisdiction to change, alter, or withdraw Mr. Adamson’s plea agreemant and/or sentence.

I look forward to hearing from you in the near future.

Very truly yours,

MARTIN & FELDHACKER

s/ William H. Feldhacker

William H. Feldhacker

WHF:ir

CC/John Harvey Adamson

APPENDIX C

Letter dated April 9, 1980, from the Attorney General’s Office

Mr. William H. Feldhacker

Attorney at Law

1045 East Bethany Home Road

Phoenix, Arizona 85014

Re: JOHN HARVEY ADAMSON

Dear Mr. Feldhacker:

In regard to the requested testimony of John Harvey Adamson in the forthcoming retrial (or retrials) of Dunlap and Robison, the position of the state is as follows:

1. The January 15, 1977, plea agreement between the state and John Adamson is still in effect. Because of this the state has the right to call upon Mr. Adamson for testimony and for interviews.

2. On April 9, the state did call upon Mr. Adamson, through you, for an interview regarding his forthcoming testimony at the trial. As Mr. Adamson’s attorney you refused to allow him to be interviewed.

3. Such a refusal by Mr. Adamson is a violation of the plea agreement. Because of such a refusal, the state may now institute proceedings necessary to carry into effect those things noted in the plea agreement that result from a violation by Mr. Adamson. Specifically those things include: reinstatement of the first degree murder charge against Mr. Adamson for the murder of Don Bolles and its possible punishment of death; reinstatement of all other criminal charges that were dismissed pursuant to the plea agreement; withdrawal of the state’s request of the federal government to assume custody of Mr. Adamson.

Mr. Adamson should also be aware that in addition to these things that flow directly from his breach of the plea agreement the state may also institute criminal actions that were not discussed as part of the plea agreement.

In an effort to resolve this question, a deposition of Mr. Adamson has been set by Judge French for 12:30 p.m. on April 10 in the conference room of the United States Attorney’s Office at the Federal Building in Phoenix.

Sincerely,

ROBERT K. CORBIN

Attorney General

/s/ William J. Schafer, III

WILLIAM J. SCHAFER, III

Chief Counsel

Criminal Division

WJS/fn

0144F

1 . The text of the plea agreement appears in Appendix A.

2 . The letter sent by Adamson’s attorney included the following terms for Adamson’s future testimony: (1) release from custody after testifying; (2) to be held in a non-jail facility with full-time protection during the retrials; (3) a complete set of clothing; (4) protection for his ex-wife and son; (5) an educational fund for his son; (6) transportation and funds for establishing a new identity outside of Arizona; and (7) full and complete immunity for all crimes in which he may have been involved, stipulating that none were murders. The full text of the letter is contained in Appendix B.

3 . The text of the state’s letter is contained in Appendix C.

4 . The dissenting opinion contends that in this case there was no prosecutorial or judicial vindictiveness. As we have declined to address the validity of that issue, we express no opinion about the position taken by the dissent. provides a written explanation for its conclusion. Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 1304-05, 71 L.Ed.2d 480 (1982) (per curiam).

Section 2254(d), however, applies only to questions of " 'basic, primary, or historical fac[t].’" Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963)). When the issue includes a mixed question of law and fact or questions of law, section 2254(d) does not require giving a presumption of correctness to the state court’s findings. See Fendler v. Goldsmith, 728 F.2d 1181, 1190 n. 21 (9th Cir.1984).

This case presents a mixed question of law and facts. Section 2254(d) applies to “historical” facts, such as whether Adamson signed the agreement, but it does not apply to whether his actions constituted waiver of double jeopardy. See Sumner v. Mata, 455 U.S. at 597, 102 S.Ct. at 1306-07 (questions of fact governed by section 2254(d), but reviewing court may accord "different weight to the facts”); Fendler v. Goldsmith, 728 F.2d at 1190 n. 21. Cf. Miller v. Fenton, — U.S. -, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985) ("voluntariness of a confession is a matter for independent federal determination").

5 . The Arizona Supreme Court relied on the text of the agreement and a statement by Adamson’s attorney at the time of sentencing in which Adamson’s attorney acknowledged that his client understood that he might have to testify at a future proceeding. The dissent likewise relies on the attorney's statement as evidence that Adamson knew that his obligations continued after sentencing.

The uncontroverted explanation of this "understanding" is that it involved a wholly separate prosecution. Simply because Adamson might have modified his obligations under the plea agreement to include testifying in the Ash-ford Plumbing Co. trial after his sentencing, this modification cannot be used as "evidence” that he knew he had to testify further against Dunlap and Robison. Moreover, even if the reference were to the possible Dunlap and Robison retrials, an attorney’s actions cannot constitute a waiver of his or her client’s protection against double jeopardy. See United States v. Rich, 589 F.2d 1025, 1032 (10th Cir.1978) (“Inasmuch as this right is anchored to the United States Constitution, it cannot be waived by one other then [sic] the accused.”).

The Arizona Supreme Court’s finding of a waiver does not preclude this court’s own inquiry into that issue. Whether Adamson’s actions constituted a waiver of a constitutional right is determined by federal law. Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir.1968). In a habeas review a federal court must presume the correctness of a state appellate court’s finding of fact unless one of the seven circumstances provided for in 28 U.S.C. § 2254(d) is present or if the state court finding of fact is not fairly supported by the record and the federal court

6 . The dissent places great reliance on Jeffers v. United States, 432 U.S. 137, 153, 97 S.Ct. 2207, 2217-18, 53 L.Ed.2d 168 (1977), to dispose of Adamson’s double jeopardy claims. At 729. Such reliance is misplaced. The Supreme Court in Jeffers held that “although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.” 432 U.S. at 152, 97 S.Ct. at 2217.

Adamson, unlike Jeffers, never elected to have two offenses set forth in two separate indictments tried separately, nor did he persuade the trial court to honor his election, nor were there in fact two indictments and two trials. The Jeffers exception to Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), is inapplicable to the facts of this case.