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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert Joe Moody, 

Petitioner, 

v. 

Charles L. Ryan, 

Respondent.

No. CV-15-00474-TUC-LCK

ORDER 

 Petitioner Robert Joe Moody has filed a Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondent’s 

Answer (Doc. 13), and Petitioner’s Reply (Doc. 22). Petitioner also filed a Motion for 

Leave to File Additional Materials. (Doc. 24.) The parties have consented to Magistrate 

Judge jurisdiction. (Doc. 6.) The Court finds the Petition should be dismissed on the 

merits. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Petitioner was convicted in the Pima County Superior Court on two counts of first 

degree murder in 1995 and sentenced to death. (Doc. 13-1 at 3-4.) On appeal, the Arizona 

Supreme Court reversed Petitioner’s convictions based on the trial court’s denial of 

Petitioner’s motion for change of counsel. (Id. at 6.) Petitioner again was convicted 

following a second trial and sentenced to death. (Id. at 25.) 

 Upon Petitioner’s automatic appeal to the Arizona Supreme Court, Petitioner 

argued, in part, that his retrial was barred on double jeopardy grounds based upon 
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prosecutorial misconduct in the first trial. (Id. at 27.) The appellate court found that 

Petitioner had neither moved for a mistrial based on prosecutorial misconduct during the 

first trial nor filed a special action seeking review of the trial court’s denial of his motion 

to dismiss based on double jeopardy before the second trial. (Id. at 27-28.) Therefore, the 

court held the double jeopardy claim was not preserved for appeal and declined to 

address it. (Id. at 28.) However, the court vacated Petitioner’s death sentence. (Id. at 53-

56 (citing Ring v. Arizona, 536 U.S. 584 (2002).) Petitioner was resentenced to 

consecutive life terms. (Doc. 13-2 at 3.) His subsequent appeal was unsuccessful. (Id. at 

2-24; Doc. 13-3 at 2.) 

 Prior to the conclusion of Petitioner’s resentencing appeal, he filed a timely Postconviction Relief (PCR) Notice. (Doc. 13-3 at 4-5.) In the PCR Petition, Petitioner 

argued, in part, that his retrial was barred on double jeopardy grounds based upon 

prosecutorial misconduct. (Id. at 8-16.) The PCR court held the claim was precluded 

because it previously had been raised and adjudicated on appeal. (Id. at 69.) The Court of 

Appeals granted review but denied relief, agreeing the claim was precluded. (Id. at 87-

90.) 

DISCUSSION 

 The Petition raises a single two-part claim that double jeopardy was violated by 

retrial because, in the first trial, there was prosecutorial misconduct and insufficient 

evidence of guilt. (Doc. 1.) Respondents contend the claim is procedurally defaulted. The 

Court finds this claim is most expeditiously resolved on the merits. See 28 U.S.C. 

§ 2254(b)(2). 

 Merits Analysis 

 Pursuant to the Double Jeopardy Clause of the United States Constitution’s Fifth 

Amendment, “No person shall be subject for the same offence to be twice put in jeopardy 

of life or limb.” 
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 First, Petitioner alleges his retrial was barred on double jeopardy grounds due to 

prosecutorial misconduct that occurred in the first trial. The Supreme Court has spoken 

on this point, holding that retrial is barred by double jeopardy only in “those cases in 

which the conduct giving rise to the successful motion for a mistrial was intended to 

provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 679 

(1982). Here, regardless of whether Petitioner made several motions for mistrial as he 

alleges, he cannot find relief under the Kennedy holding. Petitioner’s first trial did not end 

in a mistrial but in a conviction; therefore, Petitioner never obtained the “successful 

motion for mistrial” upon which the Kennedy holding relies. 

 Second, Petitioner argues his retrial was barred because the prosecution presented 

insufficient evidence of guilt at the first trial. The Supreme Court also has addressed 

directly whether insufficiency of evidence may be used as a means to bar retrial on 

double jeopardy grounds. The Court held that the Double Jeopardy Clause “may preclude 

a second trial once the reviewing court has found the evidence legally insufficient.” Burks 

v. United States, 437 U.S. 1, 18 (1978). However, the Court specifically distinguished 

instances in which the appellate court found that the evidence presented was legally 

insufficient from instances where trial error provoked a reversal on appeal. Id. at 15. The 

Court held that the Double Jeopardy Clause “does not preclude the Government’s 

retrying a defendant whose conviction is set aside because of an error in the proceedings

leading to conviction.” Id. at 14 (quoting United States v. Tateo, 377 U.S. 463, 465 

(1964)). Here, no such insufficiency of evidence determination was made on appeal; 

rather, the Arizona Court of Appeals granted relief solely on an issue relating to 

appointment of counsel. (Doc. 13-1 at 4 (declining to reach any other issues).) Therefore, 

Petitioner is not entitled to relief under Burks. 

 Petitioner has cited a number of Arizona court cases analyzing prosecutorial 

misconduct’s effect on retrial in light of the Double Jeopardy Clause. See Pool v. 

Superior Court, 677 P.2d 261, 270-72, 139 Ariz. 98, 107-09 (1984); State v. Jorgenson, 
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10 P.3d 1177, 198 Ariz. 390 (2000); State v. Minnitt, 55 P. 774, 783, 203 Ariz. 431, 440 

(2002).1

 However, each of these cases was decided based upon Arizona’s Double 

Jeopardy Clause. In fact, in Pool, the Arizona Supreme Court rejected the standard set 

forth in Oregon v. Kennedy. 677 P.2d at 271, 139 Ariz. at 108. These cases, based on the 

state constitution, provide no support for Petitioner’s federal Petition because this Court 

may grant relief only under federal law. See 28 U.S.C. § 2254(a). 

 Petitioner’s Motion for Leave to File Additional Materials 

 Petitioner has filed a Motion for Leave to File Additional Materials, which 

consists of four discs. (Docs. 24, 25.) Petitioner asserts this material is relevant to show 

that during his first trial he moved for mistrial seven times, made a motion for new trial 

and a motion to vacate judgment, and filed one or more special actions in the Arizona 

Court of Appeals. Assuming the discs reflect the material identified by Petitioner, it 

would not alter the factual or legal basis of the Court’s merits analysis. Therefore, the 

Court denies the motion to expand the state record, but will file the discs into the record 

of this Court for preservation. 

CERTIFICATE OF APPEALABILITY 

 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court 

must issue or deny a certificate of appealability (COA) at the time it issues a final order 

adverse to the applicant. A COA may issue only when the petitioner “has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 

showing can be established by demonstrating that “reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner” or that the issues were “adequate to deserve encouragement to proceed 

 

1

 Petitioner also cites State v. Hughes, 969 P.2d 1184, 1190-92, 193 Ariz. 72, 78-

80 (1998). While that case addressed prosecutorial misconduct, there was no double 

jeopardy claim at issue. Id. at 1192, 193 Ariz. at 80. Additionally, Petitioner relies upon United States v. Dinitz, 424 U.S. 600 (1976). This Court need not rely upon Dinitz

because the Supreme Court narrowed the standard set forth in that case when it decided 

Oregon v. Kennedy. 456 U.S. at 673-79. 
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further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 

U.S. 880, 893 & n.4 (1983)). The Court finds that reasonable jurists would not find this 

Court’s merits ruling debatable. Therefore, a COA will not issue. 

 Accordingly, 

IT IS ORDERED that Petitioner’s Motion for Leave to File Additional Materials 

(Doc. 24) is GRANTED in part, to the extent it seeks leave to file the material before 

this Court, but DENIED in part, to the extent it seeks to expand the state court record. 

The Clerk of Court shall file on the record the CDs lodged on the docket (Doc. 25). 

 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is 

DISMISSED. 

IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and 

close this case. 

 IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing 

Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 

certificate of appealability. 

 Dated this 28th day of August, 2017.