Unpublished Disposition, 848 F.2d 198 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 198 (9th Cir. 1988)

Gregory Allan BOTTONI, Petitioner-Appellant.v.Samuel LEWIS, Director, Arizona Department of Corrections;Attorney General of the State of Arizona,Respondents-Appellees.

No. 87-2097.

United States Court of Appeals, Ninth Circuit.

Submitted March 15, 1988* .Filed March 18, 1988.Withdrawn May 20, 1988*.New Memorandum Filed May 20, 1988.

Before CYNTHIA HOLCOMB HALL, KOZINSKI and NOONAN, Circuit Judges.


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.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

Unpublished order

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Bottoni raised his claim that double jeopardy barred his second trial for murder and burglary on direct appeal. State v. Bottoni, 131 Ariz. 574, 643 P.2d 19 (Ct.App.1982). Although his arguments in federal court are not precisely the same as those apparently made before the Arizona Court of Appeals, we conclude that Bottoni has exhausted his state remedies. "A claim is fairly presented if the petitioner has described the operative facts and legal theory on which his claim is based. A habeas petitioner may, however, reformulate somewhat the claims made in state court...." Tamapua, 796 F.2d at 262 (citation omitted)