Ricky Langley v. Warden (5th Cir. June 2019), EN BANC

The Federal Docket

Section 2254/Double Jeopardy – The state court’s ruling that the defendant’s third conviction for murder was not barred by the double jeopardy clause was not contrary to clearly established law in Ashe v. Swenson, since Ashe applies to prosecutions following general acquittals for the same conduct, not convictions, even where a defendant is convicted on a lesser-included offense.

After being convicted of second-degree murder twice, having his conviction overturned on direct appeal twice, and ultimately being retried and convicted of second-degree a third time, Ricky Langley sought federal habeas relief, arguing that his second conviction was an implicit acquittal that barred him from being retried and re-convicted a third time.

The Court recounted Langley’s grisly molestation and murder of the child victim, Langley’s recorded confession, and the procedural history of the case. After Langley’s second conviction for second-degree murder, which was overturned on appeal, the Louisiana Supreme Court held that this conviction barred the State from retrying Langley for first-degree murder. Accordingly, the State only charged Langley with second-degree murder. The judge convicted Langley after a bench trial, finding that Langley had a specific intent to kill the victim.

Langley appealed in state court, arguing that double jeopardy barred his third conviction since the jury’s second verdict convicting him could have been grounded on a finding that he lacked a specific intent to kill the victim. The state court rejected these arguments, as did the federal district court, but a panel of the Fifth Circuit reversed and found that the state court opinion was objectively unreasonable based on the Supreme Court’s decision in Ashe v. Swenson, under which the Double Jeopardy Clause has an “ingredient” of “collateral estoppel” which precludes retrial for any issue necessary determined by a jury’s verdict of acquittal, which was later extended to verdicts of conviction too. The Fifth Circuit granted rehearing en banc.

In its opinion, the majority reviewed a variety of originalist sources interpreting the Double Jeopardy Clause and detailed how the scope of federal habeas jurisdiction over state prisoners has expanded before and after AEDPA. Against this backdrop, the Court held that Langley had failed to make the threshold showing under AEDPA that the state court had unreasonably applied clearly established federal law. The Court explained that Ashe was much narrower than the prior panel had construed it, and that Ashe was limited to prosecutions following general acquittals for the same conduct, not convictions, as here. That remains true even when a defendant is convicted on a lesser-included offense, the Court held, and to hold the opposite would impermissibly extend Ashe on federal habeas review. Accordingly, the state court’s decisions were reasonable under the proper application of Ashe.

Even if Langley could satisfy the AEDPA threshold and obtained de novo review, the Court held, he would not be able to prove that the jury in his second conviction determined anything regarding his specific intent. The Court noted that caselaw generally cautions against giving acquittals any preclusive effect and, anyway, the jury had been instructed that it could convict Langley of second-degree murder based on his specific intent to kill, making it even more difficult for Langley to prove that the jury’s verdict was an “implicit acquittal” of specific-intent murder. The Court also found that the verdict would have lost any preclusive effect since it was not a final judgment after it was vacated by the state appellate court.

Judge Elrod concurred in the judgment but limited its concurrence to the majority’s analysis of AEDPA’s threshold inquiry. Given Ashe’s limited applicability to general acquittals and the nuances of Louisiana law, the state court’s application of federal law was not unreasonable.

Judge Higginson dissented, arguing that the majority opinion was contrary to Ashe and “an effort to set Supreme Court precedent straight.” Ashe, the dissent explained, to whether a jury could have grounded its verdict upon an issue other than the one the defendant seeks to foreclose. Here, the initial charges, the record, and the jury instructions show that the second jury’s verdict of conviction for second-degree murder was essentially an acquittal on the first-degree murder based on specific intent, precluding Langley’s third conviction for specific-intent murder.

Judge Costa offered a brief dissent, criticizing the majority opinion’s reliance on the writings of Anti-Federalists, who “lost,” and lamenting that the majority’s opinion weakened juries by giving their verdicts less weight.

Appeal from the Western District of Louisiana

En Banc Opinion by Oldham, joined by Jones, Smith, Owen, Southwick, Willett, Ho, Duncan, and Engelhardt

Concurring Opinion by Elrod and Haynes, joined by Stewart

Dissenting Opinion by Higginson, joined by Weiner, Dennis, Graves, and Costa

Dissenting Opinion by Costa, joined by Wiener and Higginson

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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