Appeal from the United States District Court for the District of Oregon. D.C. No. CV-90-315-DA. Helen J. Frye, District Judge, Presiding.
Before: Harry Pregerson, Andrew J. Kleinfeld, Circuit Judges, and Charles A. Legge, District Judge.*fn* Opinion by Judge Kleinfeld; Dissent by Judge Pregerson.
KLEINFELD, Circuit Judge:
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.
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 new indictment. The court also denied King's motion to compel his return to the State of Washington.
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 Detainers. 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."*fn1 Appellant's brief, at A-4. In response, the trial court held a hearing, 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 Honor, 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.
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?
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.
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 ...