DocketNumber： 92-35471
Citation Numbers： 8 F.3d 1403, 93 Cal. Daily Op. Serv. 8163, 93 Daily Journal DAR 13927, 1993 U.S. App. LEXIS 28591
Judges： Kleinfeld, Legge, Pregerson
Filed Date： 11/3/1993
Status： Precedential
Modified Date： 10/19/2024
King was convicted in Oregon state court of “aggravated murder” and sentenced to life imprisonment with a minimum of thirty years to serve. The main issue on appeal is whether the State of Oregon was bound to a ten year minimum on a plea to ordinary murder because of a plea bargain it made with King. King also claims that his prosecution violated the Interstate Agreement on Detainers because the State of Oregon secured his release from the State of Washington with an invalid indictment. The district court dismissed King’s petition for habeas corpus relief. We affirm.
I. Facts.
A man named James Salter allegedly hired King to find a hit man to kill Salter’s ex-wife Julie. The hit man, Hill, killed Mrs. Salter pursuant to King’s arrangement. King and Hill were convicted, in separate trials, but Salter was acquitted.
King was initially indicted on March 5, 1982, while he was in the custody of the State of Washington. He was transferred to Oregon pursuant to the Interstate Agreement on Detainers. The State of Oregon took custody of King on November 20, 1982. With extensions agreed to by King, the State of Oregon initially had until April 18, 1983 to try King under the indictment. O.R.S. 135.-775, art. IV(c).
On April 11, 1983, King filed a motion to quash the March 5 indictment, asserting that the indictment was improperly obtained under the Article VII § 5(2) of the Oregon Constitution. This provision requires that a grand jury consist of seven jurors, five of whom must agree to indict. The grand jury initially did consist of seven jurors, but the prosecutor excused one of the seven. The other six unanimously indicted. The Oregon trial court granted King’s motion to quash the indictment, holding that there was no “good cause” for excusing the juror.
On April 12, 1983, the state filed a motion for a thirty day continuance to allow for resubmission to the grand jury. The trial court found “good cause” for the continuance, and gave the state until May 15,1983 to file a
On April 18, 1983, the state filed a second indictment. King was arraigned on the following day, and he filed a motion to dismiss for failure to try him within the time allowed under the Interstate Agreement on Detain-ers. The motion was denied.
King also objected to the state’s second indictment on the ground that there was a substantial change in theory from the first indictment. On April 19, 1983, the prosecutor resubmitted the indictment on the original theory, and a third indictment was returned immediately. King’s motion to quash or set aside this indictment was denied.
On August 3, 1983, King entered into a plea agreement with the State of Oregon. The agreement provides for ten year eligibility for parole in exchange for a guilty plea to murder, information, and testimony:
(2) The trial presently set for August 8, 1983 will be continued at the defendant’s request....
(3) The defendant will consent to be interviewed by officers of the state or their agents in the presence of defendant’s counsel concerning all facts he knows about the death of Julie Ann Salter on September 23, 1980. The officers of the state or their agents will investigate those facts and present the results of the investigation to the state. The state will evaluate those facts on the issue of whether or not they provide independent corroboration of the defendant’s representation that James Salter agreed to pay him money and things of value to arrange for the death of Julie Ann Salter.
(4) If the State concludes that said information, in conjunction with information otherwise known to the state, does provide said independent corroboration, then and in that event the state will allow the defendant to enter a plea of guilty to the charge of murder with the understanding that the defendant will receive a life sentence with an order that he serve a minimum of ten years before being eligible for parole, and that said sentence will run concurrent to any sentence the defendant is now serving.
(6) It is further agreed by the defendant that if such plea should be entered, that the state will seek a presentence investigation and the defendant will testify truthfully in any trial against any other person who may be indicted in the future for any crime connected with the death of Julie Ann Salter.
(8) Should the defendant refuse to cooperate or give information requested pursuant to this agreement, or should the state conclude under the terms of this agreement that the information does not provide independent corroboration, the parties agree that no evidence resulting from this agreement, whether that evidence is information, persons, names, documents or physical exhibits, will be introduced by the state against the defendant in any trial or hearing unless the state can establish that it was already aware of that information.
King provided information to police and testified at the grand jury and bail hearings of James Salter. Then King demanded something more from the state, in addition to the ten year eligibility for parole and delay of his trial for which he had bargained. He insisted that the State of Oregon agree to facilitate his transfer to a prison in his home state of Alabama, and threatened to stop taking his medication so that he would relapse into his preexisting mental illness if the state did not acquiesce. Exh. 119, at 516-R-T. The state refused to grant King’s additional requests and he stopped taking his medication. Id.
On February 24,1984, King sent a handwritten motion to the court to obtain a trial date and dismiss counsel. In the motion he stated that he “withdraws in full ... from all life endangering plea-negotiations that exist at present.”1 Appellant’s brief,*1406 at A-4. In response, the trial court held a healing, during which King’s counsel questioned King’s competence to decide whether to proceed pro se. The court ordered an examination by Dr. Parvaresh, who opined that King was not competent at that time, but if he began taking his medication, his competence should be reevaluated in seven to ten days. The court ordered additional examinations.
In April 1984, King testified at the trial of James Salter, as agreed under the terms of the plea agreement. On May 31, 1984, the trial court held a hearing to determine whether King was competent to assist his own defense. Evidence was presented by both sides regarding King’s psychological fitness, and the trial court found that King “understands the nature of the proceedings and that he is able to assist and co-operate with counsel and is able to participate in his defense.” Exh. 119, at 518-19. There was testimony that King had studied psychology and completed law school, and that he would feign mental illness to manipulate the proceedings in his case. King’s counsel advised the court that King had gone back on his medication and was able to understand the proceedings and assist counsel, so he did not wish to call witnesses and requested that the court make its ruling based upon the medical reports. King would not speak in court so that the court could make an independent judgment, so the state, concerned about the adequacy of the record, called medical witnesses anyway, and King’s attorney cross-examined. The court ruled that King was competent to stand trial, and that ruling is not challenged in this appeal.
Then the court asked counsel if a trial date should be set. King, through counsel, advised the court that a trial date should be set, and that King was withdrawing his motion to proceed pro se:
MR. LYONS [King’s counsel]: Your Hon- or, I have discussed this with Mr. King. Again he does not wish, for whatever reason may be, to make any representations to the Court. But he has authorized me to do so. And we are prepared, to set a trial date in this case.
I would point out to the Court that Mr. King tacitly is withdrawing his motion to proceed pro se, which puts me back in the position of being his attorney at this time.
... I could be prepared for trial by the middle of August....
THE COURT: What is your reaction?
MR. MILLER [Deputy District Attorney]: I’m going to let Mr. Eglitis address the trial, scheduling the trial. My reaction, I would like to mention to the Court, is that the defendant has entered a plea of not guilty to this charge of Aggravated Murder. Under our agreement that we have entered into with the defendant, we have offered him an opportunity, pursuant to our agreement, to plead guilty to the charge of Murder with certain understandings. It’s my understanding that by asking for a trial date at this time he is seeking to withdraw that plea agreement. And if that is the case, we want that understood right now.
THE COURT: Well, I would think, Mr. Miller, you better file a formal motion to that effect .... because the plea agreement that I approved is in the file, is it not?
MR. MILLER: Yes.
THE COURT: And I think some disposition has to be made of that. So if I were you, I would file a formal motion to not be bound by the plea agreement, that it be held for naught, no force and effect.
MR. MILLER: All right.
THE COURT: The record then would stand that he has a not guilty plea to the charge of Aggravated Murder.
Id. at 519-21 (emphasis added).
King’s attorney did not contradict the government’s “understanding that by asking for a trial date at this time he is seeking to withdraw that plea agreement.” He proceeded instead to request co-counsel for the trial.
... today is the 9th of July. The State would like to know for certain, we would like to start preparing for trial. And even the preparations for trial are exceedingly expensive. As the court may know, this case involves largely out-of-state witnesses. It’s a lengthy and expensive procedure to procure their attendance and we would like not to have to wait until any longer to begin that. We, of course, would like not to begin it if, in fact, we know that Mr. King is going to enter his plea of guilty and follow the plea agreement.
The judge, noticing the offer to proceed according to the plea agreement, asked for clarification from the state of its position, obtained it, and entered a finding that the state was no longer bound by the plea agreement:
THE COURT: Do you think you are still bound by the plea agreement and will go through with it after what has happened?
MR. EGLITIS [Deputy District Attorney]: Well, we are not, Your Honor. But I believe the option of that would then be with us. Mr. King has indicated to this Court that he wants a trial date, that he doesn’t want to have anything to do with the plea agreement and would like the Court to enter the order to that effect. That would in essence leave the option with the State rather than with Mr. King.
THE COURT: Do you want to add something else, Mr. Lyons?
MR. LYONS: No, Your Honor, I have nothing further to add at this time.
Id. at 526 (emphasis added). The court then issued an order “relieving the State from any obligation that was originally involved in the plea agreement.” Id. at 526-27. King’s trial was scheduled to begin on August 20, 1984.
A month later, twelve days before trial, King filed a motion to compel specific performance of the plea agreement. He argued that he had substantially complied with his obligations under the agreement, so the state should accept a plea to the lesser charge of murder, rather than aggravated murder as charged, and he should receive the sentence originally agreed upon. At a hearing on the motion, King’s attorney acknowledged that King had, after testifying against Salter, advised the court that he wanted to go to trial rather than proceed with the plea agreement, but claimed that at the time, King had not been taking his medication. The state’s attorney pointed out that trial had now been delayed a year, four witnesses had disappeared, and the witnesses who would testify would have another year added to the time for memory to fade, and also pointed out King’s apparent competence since the time the court had made the competency determination.
The trial judge denied King’s motion, stating “I think it’s mainly whether or not the State has been prejudiced by the failure of the defendant to follow the plea agreement, and I find they have been.” Id. at 537. He noted the delay, the need to try to locate the witnesses again, and that this was the second or third time the state had to prepare the ease for trial. The judge specifically found that King made an informed decision and knew what he was doing when he withdrew from the plea agreement. Id. at 538-39.
King was convicted at a jury trial of aggravated murder, and sentenced to life imprisonment, with a thirty year mandatory minimum. .
King appealed, and exhausted his remedies in state court. See State v. King, 84 Or.App. 165, 733 P.2d 472, rev. denied, 303 Or. 455,
II. The Plea Agreement.
We review de novo the district court’s denial of habeas relief. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, — U.S. —, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). We review the district court’s factual findings for clear error, and state court findings of fact are entitled to a presumption of correctness.
The state court specifically held that King was competent when he rescinded the plea agreement. See King, 733 P.2d at 479. “A finding on the issue of competence is a finding of fact,” and thus is presumed correct. Brewer v. Lewis, 989 F.2d 1021, 1030 (9th Cir.1993). King has not presented evidence that he was incompetent at the time of the court’s ruling sufficient to establish by convincing evidence that the state court’s determination was erroneous. At the hearing to determine competency, both sides presented substantial evidence to support their positions. The state court’s conclusion that King was competent is supported by the record, and is thus entitled to deference.
The state court also found that King rescinded the plea agreement by requesting a trial date and by failing to comply with the plea agreement. The Court of Appeals of Oregon stated that this “finding is supported by the evidence in the record and we are bound by it.” King, 733 P.2d at 479.
The agreement required three acts by King, and one by the State of Oregon. King would (1) provide information, (2) testify, and (3) plead guilty to murder. The state would accept the plea to murder, rather than aggravated murder, and agree to a ten year mandatory minimum before eligibility for parole and a sentence concurrent with King’s Washington sentence. This was a bilateral contract, in which the state promised to do one thing, if King did three. King did two, then announced his intention not to proceed further. The state changed its position in reb-anee on King’s announced intention to go to trial. King had repeated opportunities to correct the state’s misunderstanding, if it was a misunderstanding, that he would go to trial, not plead guilty. There was no misunderstanding, though, and King claims none. He just wanted something more than he had bargained for, incarceration in his home state of Alabama, instead of in Oregon.
In United States v. Osif, 789 F.2d 1404 (9th Cir.1986), we explained “a defendant does not have a constitutional right to a plea bargain, ... nor, when he rejects a plea, can he later object to the government’s decision to proceed to trial on the counts originally charged.” Id. at 1405. Here, King rescinded the plea agreement, and thus it was no longer in force or available for him to accept. “The government is under no obligation to reoffer an agreement that was previously rejected....” Id. Although King did not initially reject the government’s offer of the plea agreement, he withdrew his acceptance. Thus, the government had no obligation to reoffer the original plea agreement.
“The construction of a plea agreement in a state prosecution and the concomitant obligations flowing from it are, within broad bounds of reasonableness, matters of state law.” Ricketts v. Adamson, 483 U.S. 1, 6 n. 3, 107 S.Ct. 2680, 2684 n. 3, 97 L.Ed.2d 1 (1987). “Once a state court has, within broad bounds of reasonableness, determined that a
The state court decided that King had rescinded his agreement, and that the state had been prejudiced by his failure to abide by the agreement, so he was not entitled to specific performance. King, 733 P.2d at 479. The factual findings of intentional rescission, competence, and prejudice to the state, are entitled to the presumption of correctness. The determination falls well within the “broad bounds of reasonableness.” King has not suggested that any constitutional right was violated by this determination. His argument appears to be that the state court determination fell outside the “broad bounds of reasonableness,” because King had performed so much of his agreement that it violated his right to due process of law not to command specific performance against the state.
We reject the proposition that the Oregon state determination fell outside the “broad bounds of reasonableness.” King partially performed his agreement, by giving information and testifying, but then repudiated it. See Restatement (Second) Contracts § 250 (1981). He said he would not plead guilty unless he got more than he had bargained for — he wanted Alabama incarceration, in addition to ten year parole eligibility and concurrent sentences. His repudiation was not a casual remark taken advantage of by a prosecutor eager to escape performance — he was brought into court, with counsel, and the matter was carefully reviewed in a context which gave King an opportunity to clarify his intention to adhere to the plea bargain, had that been his intention. King’s repudiation of his agreement excused the government’s failure to perform its part of the bargain. Id. § 253(2). A few days before trial, King offered to perform the agreement he had repudiated, that is, to nullify his repudiation. Id. § 256. But the judge reasonably ruled that he did not have the power to impose on the government the contract he had repudiated. The July 9,1984 hearing in open court established that the repudiation was understood by both parties as final, so King had no power subsequently to nullify it and take advantage of the repudiated agreement. Id. § 256(2). Also, the trial judge found that the government had materially changed its position in reliance on the repudiation, by engaging in expensive and burdensome pretrial preparation. Id.
Since the state court construction fell within “the broad bounds of reasonableness,” we cannot engage in “second guessing the finding of breach” or substitute an independent federal interpretation which would treat King as having not breached, or as entitled to specific performance despite his breach. Ricketts, 483 U.S. at 6 n. 3, 107 S.Ct. at 2684 n. 3. The matter is not so hypertechnical as this explanation may sound. King and his attorney sat silently as the state in open court attempted to clarify the status of his intentions. The state trial judge reasonably prevented him from sandbagging the state with yet another change of position on the eve of yet another trial trial date. King made his decision, to repudiate his agreement, and was reasonably and fairly held to it.
III. Interstate Agreement on Detainers.
King claims that his prosecution by the State of Oregon was barred by the Interstate Agreement on Detainers, codified at O.R.S. § 135.775 et seq. We have jurisdiction because of the Congressional approval of the compact, see 18 U.S.C. app. § 2 (1982), and review de novo. Snyder v. Sumner, 960 F.2d 1448, 1452 (9th Cir.1992) (citations omitted).
The State of Oregon indicted King on March 5,1982, while he was in the custody of the State of Washington. Pursuant to the Interstate Agreement on Detainers, Oregon obtained custody of King on November 20, 1982. With a twenty-nine day extension agreed to by King, in addition to the 120 days provided for under O.R.S. 135.775, art. IV(c), Oregon had until April 18, 1983 to try
On April 12, 1983, the prosecution filed a motion for a thirty day continuance to allow time to resubmit the case to a grand jury. The trial court found that “good cause” existed for the continuance, so it granted the state’s motion. King challenges this ruling.
In his petition for writ of habeas corpus, King asserted that his “prosecution was barred under the speedy trial provisions of the Interstate Agreement on Detainers” on the ground that “the State’s motion to postpone trial for an additional 30 days was granted improperly.” CR 1, at 6. His argument conceded that good cause would excuse the delay, but claimed that there was no good cause:
If the court was correct in concluding that the state showed good cause when it requested a 30 day continuance to obtain a new indictment, then the 120 day period would have been tolled for 30 more days and petitioner’s position that the 120 day speedy trial requirement of the IAD had been violated would be incorrect.
The question presented to this Court is whether a state, which obtains a defendant from another state through the use of an invalid indictment, can establish good cause for a continuance under the IAD when the defendant successfully moves to dismiss the invalid indictment and the basis for the state’s continuance is the convening of a grand jury to obtain a new, valid indictment against the defendant.
CR 41, at 40-41.
The district court adopted the findings and recommendations of the magistrate judge, that there was good cause:
In light of the timely nature of the State’s request, and considering the nature of the request, I agree with the Oregon Court of Appeals’ holding in this case that the trial court did not err in granting a continuance for good cause shown. In light of the previous indictment returned by the grand jury, a continuance to resubmit the charges to the grand jury was both reasonable and necessary.
ER 10.
In rejecting this argument by King, the Oregon Court of Appeals reasoned as follows:
Defendant argues that there is a contradiction in the trial court’s rulings because, in dismissing the first indictment, the court found that there was not good cause for excusing one grand juror but, when the state requested a continuance, the court found good cause to continue. We see no contradiction. Although the prosecutor lacked good cause to excuse the juror, it does not follow that, when defendant’s motion to quash was made just six days before his speedy trial period would expire, the state lacked good cause to seek a continuance to resubmit the case to the grand jury. The trial court did not err in denying defendant’s motion.
King, 84 Or.App. at 170, 733 P.2d at 476. The Court of Appeals of Oregon has it exactly right. The unanimous indictment was technically defective, but King did not move to dismiss it until the end of the time period, so the state had good cause for a thirty day continuance to take the ease to a grand jury for another indictment.
AFFIRMED.
. King apparently considered his agreement "life endangering” because he allegedly had been re
. There are exceptions to the presumption of correctness, 28 U.S.C. § 2254(d)(1) — (8), but none apply here, where King was given full and fair hearings on the issues of his competence and the rescission of the plea agreement.
. Initially, the grand jury consisted of seven members, but the prosecutor excused one of the jurors.
. The magistrate judge correctly noted that the only issue King raised was "whether a trial court has the discretion to grant a continuance, upon a timely motion by the State, to permit the State to resubmit the case to the grand jury under the circumstances presented here.” ER 11. To the extent that King raises additional issues relating to the Interstate Agreement on Detainers, we will not address them for the first time on appeal. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991).