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FILED
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

NOV 07 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT
CHRISTOPHER DEEDY,
Petitioner-Appellee,

No. 18-16632
D.C. No.
1:18-cv-00094-DKW-RLP

v.
RUSSELL A. SUZUKI et al.,

MEMORANDUM*

Respondents-Appellants.

Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted October 21, 2019
Honolulu, Hawaii
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
Petitioner Christopher Deedy filed a 28 U.S.C. § 2241 habeas petition,
seeking, on double jeopardy grounds, to prevent the State of Hawaii from retrying
him on charges of manslaughter, first-degree assault, and second-degree assault.
The district court granted his petition, holding that the trial court had acquitted
Petitioner of all three charges at his first trial. The State timely appeals.

*

This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Reviewing de novo, Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009), we
affirm in part and reverse in part.
1. The Rooker-Feldman doctrine did not bar the district court from
exercising jurisdiction over the § 2241 petition. We rejected this jurisdictional
argument in Gouveia v. Espinda, 926 F.3d 1102, 1107–10 (9th Cir. 2019).
2. Petitioner did not forfeit his double jeopardy claim as to manslaughter.
Before his second trial for second-degree murder began, Petitioner moved for the
trial court not to instruct the jury on manslaughter, arguing that doing so would put
him in double jeopardy for that offense. And Petitioner renewed that argument at
the charge conference.
3. The Double Jeopardy Clause forbids the State from retrying Petitioner for
manslaughter because he was acquitted of manslaughter at his first trial. An
acquittal encompasses "any ruling that the prosecution’s proof is insufficient to
establish criminal liability for an offense." Evans v. Michigan, 568 U.S. 313, 318
(2013). At the first trial, the trial court explicitly stated that there was no evidence
in the record to support instructing the jury on manslaughter, and the court did not
instruct the jury on manslaughter.
Although federal law determines whether a prosecution violates the Double
Jeopardy Clause, the Supreme Court has looked to state law to determine whether a
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state court’s decision constituted an acquittal. Id. at 320. Hawaii law requires trial
courts to instruct juries on any lesser-included offense that has "a rational basis in
the evidence," regardless of whether "the prosecution requests, or the defense
objects to, such an instruction." State v. Adviento, 319 P.3d 1131, 1148 (Haw.
2014) (quoting State v. Haanio, 16 P.3d 246, 248 (Haw. 2001)). Under Hawaii
law, manslaughter is a lesser-included offense of second-degree murder. Thus, by
explicitly stating that there was no evidence to support a manslaughter instruction,
and by refusing to instruct the jury on manslaughter, the trial court determined that
the State’s proof was insufficient to establish Petitioner’s criminal liability for that
offense. It does not matter that the trial court did not label the ruling an "acquittal"
or that the ruling might have been (according to the State) wrong. See Evans, 568
U.S. at 318, 325 (stating that an acquittal precludes retrial "even if the acquittal is
based upon an egregiously erroneous foundation" (internal quotation marks
omitted)).
4. Assuming, without deciding, that Petitioner did not forfeit his double
jeopardy claims as to the two assault charges, the Double Jeopardy Clause does not
forbid the State from retrying him. At first glance, the trial court’s decision not to
instruct the jury on assault at the first trial appears to represent, under the Adviento
rule, an implicit determination that the State’s proof was insufficient to convict
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Petitioner of either assault charge. But, during the charge conference at the second
trial, the trial court explained that it was legally unclear at the time of the first trial
whether assault was a lesser-included offense of second-degree murder under
Hawaii law. The Hawaii Supreme Court answered that question affirmatively well
after the first trial ended. State v. Kaeo, 323 P.3d 95, 96 (Haw. 2014).
Thus, we know that "the substance of [the] court’s decision" was not a
determination that the State failed to introduce sufficient evidence to convict
Petitioner of the assault charges. Evans, 568 U.S. at 322. Accordingly, because
there was a hung jury on the assault charges at the second trial, the State may retry
Petitioner again for first- and second-degree assault.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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United States Court of Appeals for the Ninth Circuit
Office of the Clerk
95 Seventh Street
San Francisco, CA 94103
Information Regarding Judgment and Post-Judgment Proceedings
Judgment
•
This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
•
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)

A.
•

•

B.
•

Purpose (Panel Rehearing):
A party should seek panel rehearing only if one or more of the following
grounds exist:
►
A material point of fact or law was overlooked in the decision;
►
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
►
An apparent conflict with another decision of the Court was not
addressed in the opinion.
Do not file a petition for panel rehearing merely to reargue the case.
Purpose (Rehearing En Banc)
A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2018

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►
►
►

Consideration by the full Court is necessary to secure or maintain
uniformity of the Court’s decisions; or
The proceeding involves a question of exceptional importance; or
The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.

(2)

Deadlines for Filing:
•
A petition for rehearing may be filed within 14 days after entry of
judgment. Fed. R. App. P. 40(a)(1).
•
If the United States or an agency or officer thereof is a party in a civil case,
the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(a)(1).
•
If the mandate has issued, the petition for rehearing should be
accompanied by a motion to recall the mandate.
•
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
•
An order to publish a previously unpublished memorandum disposition
extends the time to file a petition for rehearing to 14 days after the date of
the order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-2.

(3)

Statement of Counsel
•
A petition should contain an introduction stating that, in counsel’s
judgment, one or more of the situations described in the “purpose” section
above exist. The points to be raised must be stated clearly.

(4)

Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
•
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
•
The petition must be accompanied by a copy of the panel’s decision being
challenged.
•
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
•
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2018

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•

•

The petition or answer must be accompanied by a Certificate of Compliance
found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
You may file a petition electronically via the appellate ECF system. No paper copies are
required unless the Court orders otherwise. If you are a pro se litigant or an attorney
exempted from using the appellate ECF system, file one original petition on paper. No
additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
•
The Bill of Costs must be filed within 14 days after entry of judgment.
•
See Form 10 for additional information, available on our website at
www.ca9.uscourts.gov under Forms.
Attorneys Fees
•
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
•
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
•
Please refer to the Rules of the United States Supreme Court at
www.supremecourt.gov
Counsel Listing in Published Opinions
•
Please check counsel listing on the attached decision.
•
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
►
Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123
(Attn: Jean Green, Senior Publications Coordinator);
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and electronically file a copy of the letter via the appellate ECF system by using
“File Correspondence to Court,” or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 12/2018

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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf

9th Cir. Case Number(s)
Case Name
The Clerk is requested to award costs to (party name(s)):

I swear under penalty of perjury that the copies for which costs are requested were
actually and necessarily produced, and that the requested costs were actually
expended.
Signature

Date

(use “s/[typed name]” to sign electronically-filed documents)
REQUESTED
(each column must be completed)

COST TAXABLE
DOCUMENTS / FEE PAID
Excerpts of Record*

No. of
Copies

Pages per
Cost per Page
Copy

TOTAL
COST

$

$

$

$

Reply Brief / Cross-Appeal Reply Brief

$

$

Supplemental Brief(s)

$

$

Principal Brief(s) (Opening Brief; Answering
Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal;
Intervenor Brief)

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee

$

TOTAL: $
*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10

Rev. 12/01/2018