Claim that Prohibition on Double Jeopardy Was Violated Rejected

Owens v. Trammell, 2015 WL 4081123 (7/7/2015) (OK): A tip of the hat to our Colorado FPD colleague, Howard Pincus. He did a yeoman’s work in forging a very sophisticated double jeopardy - collateral estoppel argument from difficult facts in a state habeas case. Unfortunately he lost. Owens presented three arguments. First, he said that the Oklahoma courts did not use the correct analysis to decide whether the verdicts from Owen’s first trial were inconsistent and they were wrong to treat the verdicts as inconsistent. After reviewing precedent for ten pages, the panel decided Owens waived this argument. It also ruled that no clearly established Supreme Court law established how to resolve the unusual circumstances here. Next, Owens argued the Oklahoma courts unreasonably extended the Supreme Court’s collateral estoppel analysis to his case or alternatively unreasonably applied that analysis in violation of Ashe v. Swenson, 397 U.S. 436 (1970). Owens lost this argument because the Powell truly inconsistent verdict test precluded an inquiry into why and on what basis the jury acquitted Owens. [US v. Powell, 469 U.S. 57 (1984)]. Given the lower courts’ finding that the verdicts in Owens’s first trial were inconsistent, it was not objectively unreasonable for them to find the inconsistency precluded Owens from establishing - through collateral estoppel - the preclusive effect of the acquittal. Lastly, Owen’s second trial did not violate the Double Jeopardy Clause because given the inconsistencies of the verdicts in the first trial, continuing jeopardy permitted Owens to be retried on the felony murder charge.