Lemke v. Ryan, No. 11-15960 (9th Cir. 2013)
Annotate this CasePetitioner appealed the district court's denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus, contending that subjecting defendant to retrial for felony murder violated the Double Jeopardy Clause because a jury earlier had impliedly acquitted him of the robbery underlying the felony murder charge. The court affirmed the judgment, concluding that the Arizona Court of Appeals' holding that double jeopardy did not bar petitioner's retrial was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition based on the Double Jeopardy Clause. Petitioner was charged with armed robbery, felony murder predicated on armed robbery, and conspiracy to commit armed robbery. The jury returned guilty verdicts on the lesser included offenses of theft and conspiracy to commit theft, but was unable to reach a verdict on the felony murder charge. After unsuccessfully opposing his retrial on the remaining charge, petitioner pleaded guilty in exchange for a concurrent sentence. The panel first held that petitioner did not waive his Double Jeopardy claim merely by entering a guilty plea, and was not convinced that he waived it in the broad waiver clause of his plea agreement. The panel next determined that the prosecution of petitioner for armed robbery felony murder after his implied acquittal of armed robbery was a prosecution for the “same offense,” but was not a “successive” prosecution for Double Jeopardy purposes because original jeopardy had not terminated for the count for which the jury failed to reach a verdict. Consequently, the state court’s rejection of petitioner’s claim was neither contrary to nor an unreasonable application of clearly established federal law. The panel also held that retrial was not barred by the collateral estoppel doctrine, because petitioner had not demonstrated that the jury “necessarily decided” that he had not committed armed robbery when it failed to return a verdict on that count. District Judge Burns concurred in part and dissented in part. He did not agree that petitioner could pursue his Double Jeopardy claim after signing the plea agreement, but he agreed that the state court’s rejection of that claim was neither contrary to nor an unreasonable application of clearly established federal law.
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