Unpublished Disposition, 848 F.2d 198 (9th Cir. 1988)

MEMORANDUM^*** 

Gregory Allan Bottoni appeals pro se the denial of his petition for writ of habeas corpus, arguing that his retrial for murder subjected him to double jeopardy in violation of the fourteenth amendment. We review the district court's denial of habeas corpus de novo. Tamapua v. Shimoda, 796 F.2d 261, 262 n. 1 (9th Cir. 1986).¹ 

At his first trial, Bottoni was charged with first-degree murder, first-degree burglary, misdemeanor endangerment and two counts of aggravated assault. He was convicted of endangerment but acquitted of aggravated assault; the jury could not reach a verdict as to murder and burglary. On retrial for the latter crimes, the jury convicted Bottoni of second-degree murder but hung once again on the burglary count.

Bottoni argues that the issue of intent was fully litigated at his first trial, leading to his acquittal of aggravated assault. He contends, therefore, that the government was collaterally estopped from relitigating it at his second trial for murder and burglary. See Ashe v. Swenson, 397 U.S. 436, 444-46 (1970). As the State of Arizona points out for the first time in its petition for rehearing, however, Bottoni had been acquitted of assaulting Donna Huffman and Erin Allen; he was subsequently charged with and convicted of murdering a different victim, William Teller. The earlier trial had litigated Bottoni's intent as to the two female victims; it had not resolved his felonious intent as to the decedent. There was thus no violation of double jeopardy.

AFFIRMED.