Robert Lemke v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT D. LEMKE, No. 11-15960

Petitioner-Appellant,

D.C. No.

v. 2:09-cv-01059-

DGC

CHARLES L. RYAN and ATTORNEY

GENERAL OF THE STATE OF

ARIZONA, OPINION

Respondents-Appellees.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

March 6, 2013—Tucson, Arizona

Filed June 19, 2013

Before: William C. Canby, Jr. and N. Randy Smith,

Circuit Judges, and Larry A. Burns, District Judge.*

Opinion by Judge Canby;

Partial Concurrence and Partial Dissent by Judge Burns

*

The Honorable Larry A. Burns, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.

2 LEMKE V. RYAN

SUMMARY**

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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LEMKE V. RYAN 3

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.

COUNSEL

Golnoosh Farzaneh (argued), Assistant Federal Public

Defender, and Keith J. Hilzendeger, Research & Writing

Specialist, Federal Public Defenders’ Office, Phoenix,

Arizona, for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General; Kent

E. Cattani, Division Chief Counsel; Joseph T. Maziarz,

Section Chief Counsel, Phoenix, Arizona, for Respondents-

Appellees.

4 LEMKE V. RYAN

OPINION

CANBY, Senior Circuit Judge:

Petitioner Robert D. Lemke appeals the district court’s

denial of his petition for a writ of habeas corpus brought

under 28 U.S.C. § 2254. Lemke contends that subjecting him

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. We

conclude that the Arizona Court of Appeals’ holding that

double jeopardy did not bar Lemke’s retrial was not “contrary

to, or . . . an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). Accordingly, we

affirm.

BACKGROUND

In August 2002, Charles Chance was robbed and shot

once in the chest. He died at the scene. Petitioner was then

indicted in Arizona state court on three counts stemming from

that incident: (1) felony murder predicated on armed robbery;

(2) armed robbery; and (3) conspiracy to commit armed

robbery.

At trial, the court instructed the jury that the armed

robbery charge in Count II included the lesser offense of theft

and, similarly, that the charge of conspiracy to commit armed

robbery in Count III included the lesser charge of conspiracy

to commit theft. In accordance with Arizona law, the trial

court also provided a LeBlanc instruction, which allowed the

jurors to consider a lesser included offense if, after reasonable

effort, they could not agree on the greater charged offense.

LEMKE V. RYAN 5

State v. LeBlanc, 924 P.2d 441, 442 (Ariz. 1996). The jury

was not instructed on any lesser included offense for Count

I, felony murder.

After seven days of deliberation, the jury returned guilty

verdicts on the lesser included offenses of theft and

conspiracy to commit theft. The jury left blank the verdict

forms for armed robbery and conspiracy to commit armed

robbery. As to felony murder predicated on armed robbery,

the jury reported that it could not reach a verdict. The court

declared a mistrial on the felony murder count and sentenced

Lemke to a total of twenty-seven years’ imprisonment for the

theft and conspiracy convictions.

The State then sought retrial on the felony murder count.

Lemke moved for dismissal, arguing that double jeopardy

barred his retrial for felony murder predicated on armed

robbery. The trial court denied Lemke’s motion, the Arizona

Court of Appeals rejected Lemke’s double jeopardy claim in

a reasoned decision, and the Arizona Supreme Court denied

review. Thereafter, Lemke pleaded guilty to felony murder

in exchange for a concurrent life sentence with the possibility

of parole after 25 years.

Lemke then filed a pro se 28 U.S.C. § 2254 petition in

federal district court, reasserting his argument that the Double

Jeopardy Clause barred his retrial for felony murder. The

district court denied the petition and declined to issue a

certificate of appealability. Lemke appealed, and this court

granted a certificate of appealability and appointed counsel.

6 LEMKE V. RYAN

DISCUSSION

We review de novo the district court’s denial of a habeas

petition. Ferrizz v. Giurbino, 432 F.3d 990, 992 (9th Cir.

2005). Under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), we may grant Lemke’s petition for habeas

relief only if the decision of the Arizona Court of Appeals

“was contrary to federal law then clearly established in the

holdings of [the Supreme] Court; or . . . involved an

unreasonable application of such law.” Harrington v.

Richter, 131 S. Ct. 770, 785 (2011) (internal quotation marks

and citations omitted). Because the Arizona Supreme Court

denied review in a summary order, we look through that order

to the last reasoned state court decision. See Ylst v.

Nunnemaker, 501 U.S. 797, 806 (1991).

A. Waiver

As an initial matter, we address two issues of waiver. The

first is whether Lemke’s express waiver of appeal in his plea

agreement also waived his right to bring this petition for

collateral relief. The government does not argue that

Lemke’s express waiver of appeal waived his right to bring

a collateral attack under 28 U.S.C. § 2254, but the partial

dissent here does. Our circuit precedent makes clear,

however, that a waiver of collateral attack must be express,

and that a plain waiver of appeal does not suffice. See United

States v. Benboe, 157 F.3d 1181, 1183 (9th Cir. 1998) (“We

have held that even where a plea agreement specifies that no

appeal will be taken, it does not waive the right to bring a

§ 2255 motion unless it does so expressly.”); United States v.

Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (“A plea agreement

does not waive the right to bring a § 2255 motion unless it

does so expressly.”).

LEMKE V. RYAN 7

Lemke’s plea agreement does not expressly waive his

right of collateral attack. His plea agreement states:

[T]he Defendant hereby waives and gives up

any and all motions, defenses, objections, or

requests which he has made or raised, or

could assert hereafter, to the court’s entry of

judgment against him and the imposition of a

sentence upon him consistent with this

agreement. By entering this agreement, the

Defendant further waives and gives up the

right to appeal.

This provision does not mention collateral attack, and its

wording is most reasonably read as referring to post-trial

activity in the trial court, an interpretation that is bolstered by

the addition of a separate sentence waiving Lemke’s right of

appeal. Lemke’s § 2254 petition is not such a contemplated

“motion[], defense[], objection[], or request[].” Indeed, the

advice given by the trial judge at the change of plea hearing

makes clear that Lemke was not waiving his right of

collateral attack in the state court. After informing Lemke

that he was waiving his right of appeal, the judge stated:

Under the plea agreement, you have to file

what is called a petition for post-conviction

relief where if there were any mistakes by

your attorneys, by the State, by the Courts or

any other irregularity that requires redress

with the Courts, you have to file that petition

in writing with the sentencing judge within 90

days of your sentence or you might lose that

right.

8 LEMKE V. RYAN

It seems apparent, therefore, that neither the plea agreement

nor Lemke’s likely understanding of it waived his right to

bring this collateral action under § 2254.

The second waiver issue is whether Lemke, by his plea or

in the quoted portion of his plea agreement, waived his claim

of double jeopardy as a substantive matter. Because the state

courts did not consider this issue, our review is de novo. See

Scott v. Schriro, 567 F.3d 573, 584–85 (9th Cir. 2009) (noting

that AEDPA deference does not apply when “there is no state

court decision on this issue to which to accord deference”

(internal quotation marks and citation omitted)).

The general rule is that “‘a voluntary and intelligent plea

of guilty made by an accused person, who has been advised

by competent counsel, may not be collaterally attacked.’”

United States v. Broce, 488 U.S. 563, 574 (1989) (quoting

Mabry v. Johnson, 467 U.S. 504, 508 (1984)). This rule is

predicated on the idea that a valid guilty plea “removes the

issue of factual guilt from the case.” Menna v. New York,

423 U.S. 61, 62 n.2 (1975). Accordingly, Lemke’s guilty

plea to felony murder waived constitutional claims that

became irrelevant upon reliable establishment of factual guilt

by his plea. Id.

An exception to this general rule, however, is that a

defendant’s “guilty plea does not foreclose a subsequent

challenge where the defendant challenges the right not to be

haled into court at all.” Broce, 488 U.S. at 574–75 (internal

quotation marks omitted). Lemke’s plea fits into this narrow

exception where he argues that the charge to which he

pleaded guilty is one “which the State may not

constitutionally prosecute,” id. at 575 (internal quotation

marks and citation omitted), and where his claim does not

LEMKE V. RYAN 9

rely on evidence outside the “indictments and the existing

record,” id. at 576. In arguing that his retrial for felony

murder violated double jeopardy, Lemke does not challenge

his factual guilt, but instead asserts that the State was

constitutionally barred from prosecuting him for felony

murder. See United States v. Garcia-Valenzuela, 232 F.3d

1003, 1006 (9th Cir. 2000) (“The Court in Menna drew a

fundamental distinction between post-plea constitutional

challenges that implicated the factual guilt of the defendant,

and those that were independent of factual guilt.”).

Moreover, as previously mentioned, Lemke relies only on the

existing record and does not “seek further proceedings at

which to expand the record with new evidence.” Broce,

488 U.S. at 575. We may resolve Lemke’s claim solely by

reviewing the face of the indictment, the guilty plea, and the

judgments entered against Lemke “without any need to

venture beyond [the existing] record.” Id. Thus, Lemke’s

double jeopardy claim is not waived merely by his entry of a

plea of guilty.

A more difficult issue is whether Lemke waived his

double jeopardy defense entirely in the clause of the plea

agreement in which Lemke waives “all motions, defenses,

objections, or requests which he has made or raised, or could

assert hereafter, to the court’s entry of judgment against him.”

Although this language is broad, it does not refer specifically

to double jeopardy or any other particular subject matter.

And for reasons that we have explained, the waiver appears

to be limited to matters arising in the trial court apart from

any collateral attack. We construe any ambiguity in a plea

agreement against the drafter – here, the State. See United

States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.

2006). Lemke’s claim of double jeopardy raised by this

appeal thus may not fall within the “literal terms” of his plea

10 LEMKE V. RYAN

agreement waiver. United States v. Leniear, 574 F.3d 668,

672 (9th Cir. 2009) (internal quotation marks and citation

omitted).

In arguing that Lemke’s double jeopardy claim is waived,

the partial dissent here relies on Ricketts v. Adamson,

483 U.S. 1 (1987). In that case, Adamson had entered a plea

of guilty to second-degree murder that required him to testify

against his co-conspirators. The agreement provided that

“[s]hould the defendant refuse to testify . . . then this entire

agreement is null and void and the original charge [of first-

degree murder] will be automatically reinstated.” Id. at 4. It

further specified that “[i]n the event that this agreement

becomes null and void, then the parties shall be returned to

the positions they were in before this agreement.” Id. at 9.

Adamson testified and was sentenced for second-degree

murder pursuant to the agreement. The convictions of his co-

conspirators were reversed on appeal, however, and Adamson

refused to testify against them at their retrial. The court then

vacated his conviction and reinstated the first-degree murder

charge. Adamson was convicted and sentenced to death. The

Supreme Court upheld the conviction, rejecting Adamson’s

double jeopardy claim. The Court stated:

The terms of the agreement could not be

clearer: In the event of respondent’s breach

occasioned by a refusal to testify, the parties

would be returned to the status quo ante, in

which case respondent would have no double

jeopardy defense to waive. And, an

agreement specifying that charges may be

reinstated given certain circumstances is, at

least under the provisions of this plea

LEMKE V. RYAN 11

agreement, precisely equivalent to an

agreement waiving a double jeopardy defense.

Id. at 10 (emphasis in original).

Adamson certainly stands for the proposition that a double

jeopardy defense can be waived, but it is sufficiently

distinguishable so that it does not necessarily compel a

conclusion that Lemke has waived his double jeopardy claim.

Adamson’s waiver was specific to his situation and spelled

out exactly what would happen to him if he refused to testify.

Lemke’s waiver was not similarly specific, and his

underlying prior adjudication was not vacated because of a

breach of a plea agreement or for any other reason.

We are not convinced, therefore, that Adamson or any

other authority supports a conclusion that Lemke has waived

his double jeopardy defense. We need not resolve this

question definitively, however, because we conclude, for the

reasons that follow, that Lemke’s double jeopardy claim fails

on its merits to meet the requirements of § 2254(d)(1). The

contention that he waived that claim is not a jurisdictional

issue, and there is no compelling reason why we cannot

proceed to the merits of his appeal without conclusively

resolving the waiver issue. See United States v. Jacobo

Castillo, 496 F.3d 947, 954–57 (9th Cir. 2007) (en banc)

(holding that a plea agreement waiver of appeal does not

deprive appellate court of statutory jurisdiction).

B. Double Jeopardy

The Double Jeopardy Clause provides that no person shall

“be subject for the same offence to be twice put in jeopardy

of life or limb.” U.S. Const. Amend. V. The claim

12 LEMKE V. RYAN

preclusion aspect of the Double Jeopardy Clause bars

successive prosecutions for charges that are, for double

jeopardy purposes, the same offense. United States v. Dixon,

509 U.S. 688, 696–98 (1993). The issue preclusion, or

collateral estoppel, aspect of double jeopardy “precludes the

Government from relitigating any issue that was necessarily

decided by a jury’s acquittal in a prior trial.” Yeager v.

United States, 557 U.S. 110, 119 (2009).

The Arizona Court of Appeals held that neither aspect of

double jeopardy barred Lemke’s retrial for felony murder.

Lemke v. Rayes, 141 P.3d 407, 416 (Ariz. Ct. App. 2006).

We now consider whether that conclusion constituted an

unreasonable application of clearly established Supreme

Court precedent, and we hold that it did not.

1. Double Jeopardy Claim Preclusion

The Supreme Court has held that the Double Jeopardy

Clause “protects against successive prosecutions for the same

offense after acquittal or conviction.” Monge v. California,

524 U.S. 721, 727–28 (1998). We conclude that, under this

formulation and others put forth by the Supreme Court, the

prosecution of Lemke for armed robbery felony murder after

his implied acquittal of armed robbery was indeed

prosecution for the “same offense.” Supreme Court

precedent, however, does not clearly establish that, under the

circumstances of his case, the continued prosecution was

“successive” and therefore prohibited.

a. The “Same Offense” test

Two charges constitute the “same offense” for double

jeopardy purposes unless “each provision requires proof of a

LEMKE V. RYAN 13

fact which the other does not.” Blockburger v. United States,

284 U.S. 299, 304 (1932).

The State admits, and the Arizona Court of Appeals held,

that armed robbery and felony murder predicated on armed

robbery are the “same offense” under the Blockburger test

because the felony murder includes all of the elements of

armed robbery. See, e.g., Harris v. Oklahoma, 433 U.S. 682,

682–83 (1977) (holding that, for double jeopardy purposes,

robbery with a firearm is the same offense as felony murder

predicated on armed robbery); Whalen v. United States,

445 U.S. 684, 693–94 (1980) (noting that rape is a “lesser

included” offense of felony murder predicated on rape and is

the same offense for double jeopardy purposes); United States

v. James, 556 F.3d 1062, 1067 (9th Cir. 2009) (analyzing an

Arizona state conviction and accepting that robbery is a lesser

included offense of felony murder).1

The Arizona Court of Appeals also assumed that, by

convicting Lemke of theft and remaining silent as to the

charge of armed robbery, the jury impliedly acquitted Lemke

of armed robbery. See Green v. United States, 355 U.S. 184,

190–91 (1957) (holding that when a jury convicts a defendant

on a lesser included charge and remains silent as to the

greater inclusive charge, it impliedly acquits the defendant of

the greater charge); see also Brazzel v. Washington, 491 F.3d

976, 981 (9th Cir. 2007) (“An implied acquittal occurs when

a jury returns a guilty verdict as to a lesser included or lesser

alternate charge, but remains silent as to other charges,

1

Moreover, because theft is a lesser included offense of robbery, theft

and felony murder predicated on robbery are also the “same offense” for

double jeopardy purposes.

14 LEMKE V. RYAN

without announcing any signs of hopeless deadlock.”).2 The

Arizona Court of Appeals was thus confronted with a

situation in which the jury had convicted the defendant of

theft, impliedly acquitted him of armed robbery, and

deadlocked on felony murder, and all three of those charges

constituted the “same offense” for double jeopardy purposes.

Lemke argues that, once the Arizona Court of Appeals

reached this point in its analysis, Blockburger compelled the

court to hold that double jeopardy barred his retrial for felony

murder. His argument is attractively simple. Under

Blockburger, the offenses for which he was convicted (theft)

and impliedly acquitted (armed robbery) are the “same

offense” as felony murder. Accordingly, the State could not

place him twice in jeopardy for the “same offense” by

retrying him on the felony murder charge.

The Arizona Court of Appeals, however, did not follow

the straightforward approach that Lemke advocates. Citing

Richardson v. United States, 468 U.S. 317, 325 (1984), the

court noted that the protections afforded by the Double

Jeopardy Clause apply only after original jeopardy has

terminated, and jeopardy “continues” on counts for which the

jury has failed to reach a verdict. Lemke, 141 P.3d at 414.

2

The trial court’s provision of a LeBlanc instruction, which allowed

jurors to consider the lesser offense if they could not agree as to the

greater offense, likely does not undermine the conclusion that the jury’s

silence on armed robbery constituted an implied acquittal. See Brazzel,

491 F.3d at 979 (treating the situation as an implied acquittal where the

jurors left blank the verdict form for the greater offense and convicted on

the lesser offense, even though the jury instructions included an “unable

to agree” instruction and provided that the jurors “must” fill out the verdict

form if they unanimously agreed and were to leave it blank if they could

not agree).

LEMKE V. RYAN 15

The Arizona Court of Appeals therefore held that, although

jeopardy had terminated as to the armed robbery count of the

indictment, it had never terminated as to the felony murder

count. Id. at 415. Thus, retrial for felony murder would not

expose Lemke to a successive prosecution or place him

“twice in jeopardy.” Id.

b. “Successive” prosecution

We cannot conclude that Supreme Court precedent

forecloses the result reached by the Arizona Court of

Appeals. Neither of the Supreme Court cases that Lemke

principally relies upon conclusively addresses his situation.

In Green v. United States, 355 U.S. 184 (1957), the defendant

was charged with arson and first degree murder by arson.

The jury found him guilty of arson and second degree

murder. On appeal, his second degree murder conviction was

reversed and his case was remanded for retrial. On remand

he was tried and convicted of first degree murder. The

Supreme Court held that the first degree murder conviction

was barred by the Double Jeopardy Clause because the first

jury implicitly acquitted him of that charge, and that jury had

been dismissed without Green’s consent, thus ending his

jeopardy on that charge. Id. at 190–91; accord, Price v.

Georgia, 398 U.S. 323, 329 (1970). Green is close to

Lemke’s case, but differs in that Lemke was not retried on the

same charge of which the jury had implicitly acquitted him,

and no event necessarily terminated his jeopardy on the hung-

jury charge of felony murder predicated on armed robbery.

In Brown v. Ohio, 432 U.S. 161 (1977), the defendant had

been convicted of joyriding. He was later indicted and

convicted of auto theft arising from the same incident. The

Supreme Court held that the second conviction was barred by

16 LEMKE V. RYAN

the Double Jeopardy Clause, but it is abundantly clear that the

separate, second prosecution was “successive” within the

meaning of the Double Jeopardy Clause.

On the other hand, the Supreme Court in Richardson v.

United States, 468 U.S. at 325, permitted retrial of charges on

which a jury had been unable to agree, despite the

defendant’s argument that the evidence in his first trial had

been insufficient to convict him. In rejecting that argument,

the Court held that “the failure of the jury to reach a verdict

is not an event which terminates jeopardy.” Id. And in Ohio

v. Johnson, 467 U.S. 493 (1984), the Supreme Court held that

the defendant’s plea of guilty to lesser included offenses did

not foreclose an ensuing trial on the greater offense, noting

that the defendant’s “efforts were directed to separate

disposition of counts in the same indictment where no more

than one trial of the offenses charged was ever

contemplated.” Id. at 502. Finally, in Blueford v. Arkansas,

132 S. Ct. 2044, 2050–51 (2012), the Supreme Court

permitted retrial of capital charges after a jury was unable to

reach a verdict, even though the jury had reported itself as

unanimously against conviction on the capital charge; no

verdict had actually been entered.

Although none of these cases perfectly matches Lemke’s

case, and although Green is perhaps the closest case to

Lemke’s, the mix of these Supreme Court cases does not

leave us with an impression that law clearly established by

the Supreme Court precluded Lemke’s being subjected to

retrial for felony murder – a charge of which he had not been

acquitted explicitly or implicitly. We have not been directed

to any Supreme Court decision that forecloses as a matter of

claim preclusion the retrial, in the same litigation, of a charge

LEMKE V. RYAN 17

upon which the record shows that the jury was unable to

come to a verdict.

Although the clearly established federal law required by

§ 2254(d)(1) must be found in Supreme Court, not circuit

court, decisions, we may examine our own precedent to see

whether we are bound by one of our decisions that “has

already held that the particular point in issue is clearly

established by Supreme Court precedent.” Marshall v.

Rodgers, 133 S. Ct. 1446, 1450 (2013). Such an examination

leads to somewhat contradictory results in this case.

Wilson v. Czerniak, 355 F.3d 1151 (9th Cir. 2004),

provides strong support for Lemke’s position. There, the

petitioner had been indicted on a variety of charges, including

aggravated felony murder predicated on kidnapping,

intentional murder, and kidnapping. Id. at 1152. Felony

murder and intentional murder were charged in separate

counts. Id. at 1152. The jury convicted the petitioner of

kidnapping, acquitted him of intentional murder, and hung on

the aggravated felony murder charges. Id. We held that the

petitioner could not be retried for felony murder because he

had been acquitted of intentional murder, which, under

Blockburger, was the “same offense” as felony murder. In so

holding, we noted that “[w]ell-settled Supreme Court

precedent provides that a criminal defendant may not be

retried for a crime following an acquittal or conviction on a

lesser included or greater inclusive offense.” Id. at 1154.

Even though jeopardy had not terminated as to the hung

felony murder count, it had terminated as to the intentional

murder count, and intentional murder was a lesser included

offense of felony murder. Id. at 1155. Accordingly, “a retrial

for aggravated felony murder would subject Wilson twice to

jeopardy for the same offense.” Id. at 1156. Moreover, we

18 LEMKE V. RYAN

distinguished Richardson on the ground that it involved

“separate and unrelated offenses and raised no Blockburger

issue.” Id. at 1155. Finally, we held that the state court had

unreasonably applied Supreme Court precedent in reaching

the contrary conclusion. Id. at 1156–57.

Wilson presents a very close factual situation to this case,

but it is not precisely on point. Unlike the petitioner in

Wilson, Lemke was acquitted of a lesser-included charge

(armed robbery) only by implication arising from his

conviction of a sub-lesser-included charge (theft). Yet this

distinction is not really material for claim preclusion

purposes; double jeopardy may be shown by either a prior

acquittal or a prior conviction of the same offense. Id. at

1154. Moreover, all parties have accepted for purposes of

decision that Lemke’s implied acquittal for armed robbery

was effective, and that the State could not retry him for armed

robbery.

Thus, were we faced only with the applicable Supreme

Court precedent and our interpretation of that precedent in

Wilson, we would likely consider ourselves bound by circuit

law to conclude that clearly established federal law as

determined by the Supreme Court barred Lemke’s retrial for

felony murder. But other cases decided by our circuit before

and after Wilson present insurmountable obstacles in the way

of such a conclusion.

In Forsberg v. United States, 351 F.2d 242 (9th Cir.

1965), decided well before Wilson, the jury hung on a lesser

included offense and acquitted on a greater inclusive offense

charged in the same indictment. Relying on the fact that the

two charges were brought in the same indictment, we held

that the termination of jeopardy as to the greater inclusive

LEMKE V. RYAN 19

offense did not bar retrial as to the lesser included offense.

Id. at 248.

A year after our decision in Wilson, and largely

contradictory to it, we decided United States v. Jose, 425 F.3d

1237 (9th Cir. 2005). There, the defendants were initially

convicted of felony murder and lesser included robbery and

burglary charges, but their felony murder convictions were

reversed on appeal. Id. at 1239–40. Relying heavily on

Forsberg and without mentioning Wilson, we held that “final

convictions on the underlying predicate felonies do not

trigger double jeopardy protections against retrial of the

greater offense originally charged under the same indictment

in the same trial.” Id. at 1248 (emphasis in original). We

noted that “‘there is a difference between separate, successive

trials of greater and lesser offenses, and the different situation

in which both are tried together.’” Id. at 1242 (quoting

United States v. DeVincent, 632 F.2d 155, 158 (1st Cir.

1980)). We concluded that, “[i]n such a situation, the

government is not barred from retrying the defendant,

notwithstanding that jeopardy has terminated on the related

offense. And this is true even though the greater and lesser

offenses are the ‘same offense’ for purposes of double

jeopardy.” Id. at 1243–44 (internal citations omitted). We

rejected the defendants’ reliance on Green, noting that

“[t]heir theory would have made it impossible for the district

court to retry Green on the charge of second degree murder

even though this was the charge that formed the basis of his

reversed conviction.” Id. at 1245 (footnote omitted).3

3

This observation regarding Green is problematical in light of Green’s

unusual procedural posture. Green had obtained reversal of his second-

degree murder conviction on the ground that the jury should not have been

instructed on second-degree murder, so that it was possible that, without

20 LEMKE V. RYAN

Accordingly, we held that retrial did not violate double

jeopardy.4

It is almost impossible to reconcile Wilson and Jose and

satisfy our quest for binding circuit authority on whether

Lemke’s subjection to retrial for felony murder violated

clearly established federal law as determined by the Supreme

Court. The conflict between Wilson and Jose is sufficiently

severe that, if we were dealing with a direct appeal, we would

probably suggest en banc review to determine which case

provides the circuit law to govern the appeal of the double

jeopardy claim. This is not a direct appeal, however, and our

ultimate task is to determine whether Supreme Court

precedent clearly establishes federal law in Lemke’s favor.

All we can say in the face of Wilson and Jose is that our

circuit law provides no binding answer on that point.

Because our direct examination of Supreme Court precedent

the instruction, he would have been acquitted of murder entirely. The

court of appeals agreed that the evidence pointed “to murder in the first

degree and nothing else,” and that the second-degree murder instruction

had been “at least technically erroneous.” Green v. United States,

218 F.2d 856, 859 (D.C. Cir. 1955). It seems likely, therefore, that Green

could not have been retried for second-degree murder on remand. Our

larger point in Jose, however, was that ordinarily a defendant who

succeeds in overturning a conviction on appeal can be retried. See United

States v. Tateo, 377 U.S. 463, 465 n.1 (1964) (“[Green] holds only that

when one is convicted of a lesser offense included in that charged in the

original indictment, he can be retried only for the offense of which he was

convicted rather than that with which he was originally charged.”).

Moreover, even if Jose misinterpreted Green, its decision remains as the

potential law of the circuit regarding Green’s effect.

4

The Arizona Court of Appeals cited Jose in support its conclusion that

jeopardy continued on Lemke’s felony murder charge even after it

terminated on the robbery charge. Lemke, 141 P.3d at 415.

LEMKE V. RYAN 21

reveals no clearly established law precluding Lemke’s retrial

for felony murder, we reject his double jeopardy claim

preclusion argument.

Case law from our sister circuits that conflicts with

Wilson also buttresses our conclusion that Lemke’s double

jeopardy claim is not founded on clearly established Supreme

Court law. See Carey v. Musladin, 549 U.S. 70, 76 (2006)

(noting that divergent treatment of an issue among circuit

courts “reflect[ed] the lack of guidance” from the Supreme

Court); Meras v. Sisto, 676 F.3d 1184, 1190 (9th Cir. 2012)

(noting that extensive disagreement among lower courts may

suggest that a state court did not unreasonably apply clearly

established federal law). Several decisions from other

circuits suggest that double jeopardy does not necessarily bar

retrial on a hung count after jeopardy has terminated on a

lesser included or greater inclusive offense charged in the

same indictment. See, e.g., United States v. Jackson,

658 F.3d 145, 151–53 (2d Cir. 2011) (finding no double

jeopardy violation where defendant had been convicted of

lesser included offense and retried on deadlocked greater

offense, but suggesting that collateral estoppel might have

barred retrial had defendant been acquitted, rather than

convicted, of lesser offense); Delgado v. Fla. Dep’t of

Corrections, 659 F.3d 1311, 1330 (11th Cir. 2011) (citing

Jose with approval and noting that jeopardy can continue on

one charge even after it terminates on a lesser or greater

offense charged in the same indictment); United States v.

Howe, 538 F.3d 820, 827 (8th Cir. 2008) (holding that, when

a jury acquits a defendant of a greater offense and deadlocks

as to a lesser offense, “jeopardy continues as to the lesser

offense, notwithstanding the defendant’s acquittal on the

greater offense”), abrogated on other grounds by Yeager v.

United States, 557 U.S. 110 (2009). These cases cast doubt

22 LEMKE V. RYAN

on the proposition that Supreme Court precedent clearly

establishes that double jeopardy bars retrial on a deadlocked

count once jeopardy has terminated on another count in the

indictment that constitutes the “same offense.”

We conclude, therefore, that Lemke has failed to meet the

requirement of 28 U.S.C. § 2254(d)(1) that the decision of the

Arizona Court of Appeals rejecting double jeopardy claim

preclusion “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.”

2. Collateral Estoppel

We also conclude that the Arizona Court of Appeals did

not unreasonably apply clearly established federal law in

holding that collateral estoppel did not bar Lemke’s retrial for

felony murder. Collateral estoppel would apply if Lemke’s

retrial for felony murder would involve “relitigating any issue

that was necessarily decided by a jury’s acquittal in a prior

trial.” Yeager, 557 U.S. at 119. In deciding whether an issue

was “necessarily decided” by the jury, the court must

“examine the record of a prior proceeding, taking into

account the pleadings, evidence, charge, and other relevant

matter, and conclude whether a rational jury could have

grounded its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.” Ashe v.

Swenson, 397 U.S. 436, 444 (1970) (internal quotation marks

and footnote omitted).

The Arizona Court of Appeals reasonably concluded that

Petitioner could not carry his burden of demonstrating that

the jury “necessarily decided” that he had not committed

armed robbery. The court noted that “[t]he LeBlanc

LEMKE V. RYAN 23

instruction prevents us from knowing whether the jury

unanimously acquitted defendant of armed robbery or simply

could not agree.” Lemke, 141 P.3d at 416. Although the

jury’s silence on armed robbery constituted an implied

acquittal of that charge for the purposes of the claim

preclusion aspect of double jeopardy, it does not have an

issue preclusive effect unless the record indicates that the jury

necessarily decided the issue in Lemke’s favor. See Schiro v.

Farley, 510 U.S. 222, 236 (1994) (“We have in some

circumstances considered jury silence as tantamount to an

acquittal for double jeopardy purposes. Green v. United

States, 355 U.S. 184, 190-191 . . . ; Price v. Georgia,

398 U.S., at 329, 90 S. Ct., at 1761. The failure to return a

verdict does not have collateral estoppel effect, however,

unless the record establishes that the issue was actually and

necessarily decided in the defendant's favor.”); see also

United States v. Carothers, 630 F.3d 959, 964–65 (9th Cir.

2011) (holding that the trial court’s improper mistrial on

simple possession barred retrial for that charge under double

jeopardy but carried no issue-preclusive effect with respect to

retrial for a greater inclusive charge). Here, the record did

not establish that the jury had necessarily decided that Lemke

did not commit armed robbery.

CONCLUSION

The judgment of the district court is

AFFIRMED.

24 LEMKE V. RYAN

BURNS, District Judge, concurring in part and dissenting in

part:

I agree that the decision of the Arizona Court of Appeals

rejecting Lemke’s double jeopardy claim was not contrary to,

or an unreasonable application of, clearly established Federal

law. I don’t agree, though, that Lemke still had a double

jeopardy claim left after he pled guilty to felony murder.

Lemke signed a plea agreement in which he bargained away

his right to pursue “any and all motions, defenses, objections

or requests which he [had] made or raised, or could assert

hereafter, to the court’s entry of judgment against him.” But

after he got what he bargained for — namely, a favorable

sentence — he reneged on his promise to drop his defenses

and appeals. We shouldn’t let him get away with such

perfidy.

The panel majority holds as a threshold matter that under

Menna v. New York, 423 U.S. 61, 62 (1975), a double

jeopardy claim is not impliedly waived by a defendant’s open

guilty plea, provided the defendant is not challenging his

factual guilt and his claim can be resolved without

considering evidence outside the record. Majority opinion at

8–9. I agree with that. The majority also seems willing to

accept that a double jeopardy claim not preserved by Menna

can be expressly waived by a plea agreement. I agree with

that too. But the majority thinks that the comprehensive

waiver language in Lemke’s plea agreement does not cover

his failed double jeopardy claim, which was the mainspring

of his defense before he decided to plead guilty to felony

murder. That’s where I disagree.

After the jury convicted Lemke of theft, but hung on the

felony murder count, Arizona sought to retry him for felony

LEMKE V. RYAN 25

murder. Lemke objected, raising his double jeopardy defense

in a motion with the state trial court. The trial judge denied

the motion. Lemke next raised the defense in a petition for

special action — basically, an interlocutory appeal — with

the Arizona Court of Appeals. That court also rejected it.

Lemke then sought to raise the defense in the Arizona

Supreme Court, which refused to hear his claim.

Having exhausted his double jeopardy defense in the state

courts, Lemke faced going to trial again and, if convicted,

pursuing his arguments on direct appeal or on collateral

review in the federal courts. He instead opted to make a deal

with the State. In exchange for a parole eligible sentence that

would run concurrently with the sentence he was already

serving for theft, Lemke promised to plead guilty to felony

murder, end his legal challenges, and serve his time. The state

kept its word; Lemke was sentenced to concurrent time on the

felony murder charge, and was declared eligible for eventual

parole. That should have ended the matter, but then he filed

a habeas corpus petition with our court.

The majority gets off on the wrong foot by misconstruing

the plain language of Lemke’s plea agreement, then

compounds its misstep by ignoring the context in which the

agreement was entered into. The waiver language “is broad,”

the majority concedes, but they still find it insufficient

because it doesn’t specifically mention “double jeopardy” or

any other particular subject matter. It doesn’t have to. The

two requirements for a valid waiver are that it must be

“voluntary in the sense that it was the product of a free and

deliberate choice,” which is not in issue here, and “made with

a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon

it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). Yes, the

26 LEMKE V. RYAN

Ninth Circuit requires an express waiver of collateral attack.

United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir. 1998);

United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).

And, yes, the language must encompass what is actually

being waived. United States v. Leniear, 574 F.3d 668, 672

(9th Cir. 2009). But under any fair understanding of

language, Lemke’s plea agreement meets those requirements.

His sweeping commitment to give up “any and all” defenses

“he has made or raised” surely encompasses the double

jeopardy defense — the only defense that he had raised at all

levels in the Arizona courts. And his categorical pledge that

his waiver would extend to any “motions, defenses,

objections, or requests” that he “could assert hereafter” just

as surely covers a collateral attack. In spite of the majority’s

parsing, the language isn’t ambiguous, superfluous, or

redundant. It conveys Lemke’s all-inclusive promise to stop

defending against the charge. No amount of parsing can

change that.1

The case that should guide our determination of whether

Lemke’s waiver was express enough is Ricketts v. Adamson,

483 U.S. 1, 8–9 (1987). In Adamson, a defendant who pled

1

The majority says a § 2254 petition isn’t a “motion[ ], defense[ ],

objection[ ], or request[ ].” Majority opinion at 7. Maybe that’s right,

although our circuit has at least casually referred to § 2254 habeas

petitions as “motions.” See, e.g., Lee v. Lampert, 653 F.3d 929, 935 n.10

(9th Cir. 2011) (en banc); Boyd v. Newland, 467 F.3d 1139, 1145 n.4 (9th

Cir. 2006). This misses the point, though. Even assuming Lemke’s

§ 2254 petition isn’t a “motion,” the double jeopardy claim driving the

petition is certainly a “defense” or “objection” to the entry of judgment

against him, just as it’s one that Lemke had “made or raised” at the time

he signed the plea agreement and that he “could assert hereafter.” Because

there is no ambiguity here, the benefit of the doubt principle that would

have us construe the plea agreement in his favor doesn’t apply. See

United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006).

LEMKE V. RYAN 27

guilty to a lesser charge under a plea agreement went back on

his word after he received the benefit he bargained for. In

response to the defendant’s breach, the state reinstated the

original charges and tried and convicted him. Our circuit on

habeas review, like the majority here, held that the

defendant’s plea agreement didn’t waive his double jeopardy

claim because it didn’t explicitly mention the words “double

jeopardy.” Adamson v. Ricketts, 789 F.2d 722, 728 (9th Cir.

1986) (en banc). But the Supreme Court dismissively

rebuffed that cramped view, saying “we do not find it

significant, as did the Court of Appeals, that ‘double

jeopardy’ was not specifically waived by name in the plea

agreement.” 483 U.S. at 9. The point was, according to the

Court, that more general language could be “precisely the

equivalent to an agreement waiving the double jeopardy

defense.” Id. at 10. So it is here, where Lemke’s commitment

to “waive any and all defenses” subsumes the particular

defense he raises and is therefore precisely equivalent to a

lesser promise to “waive the defense of a double jeopardy.”

The majority suggests that statements made by the

Arizona trial judge during the change of plea colloquy show

that Lemke retained the right to bring a federal habeas corpus

petition. I don’t see how. The judge correctly informed

Lemke that, as part of his plea agreement, he had waived any

right to appeal. But because Arizona, under its state

constitution, permits a defendant to file a “petition for post

conviction relief” in every criminal case, the judge went on

to inform him of that. This right, known as “a Rule 32 of-

right proceeding,” see State v. Ward, 211 Ariz. 158, 161–62

(2005), is peculiar to Arizona and has nothing to do with

federal habeas corpus. The judge made that clear by telling

Lemke that his petition had to be filed with “the sentencing

judge.” Lemke eventually filed a Rule 32 petition, but it was

28 LEMKE V. RYAN

summarily denied because the sentencing judge found that

every issue Lemke raised, including double jeopardy, “was

either raisable on direct appeal or has been waived at trial or

on appeal.” See Lemke v. Ryan, Case No. CR 9-CV-1059

(D. Ariz), Doc. No. 15-7 (June 5, 2008). And, indeed, Lemke

can’t challenge that ruling in this court because a Rule 32

petition is strictly a state remedy that does not implicate

federal habeas corpus jurisdiction. See Hunt v. Vasquez,

899 F.2d 878, 880 (9th Cir. 1990) (habeas corpus insures that

a federal forum is available to vindicate a violation of a

federal right; there is no federal right to any particular state

law regime).

Lemke got what he bargained for, and I see no reason to

let him out of his obligations under the plea agreement.

“[T]he Double Jeopardy Clause, which guards against

Government oppression, does not relieve a defendant from

the consequences of his voluntary choice.” United States v.

Scott, 437 U.S. 82, 99 (1978). If the state may, as in

Adamson, prosecute a defendant on the original charges

following his breach of a plea agreement, then it should also

be permitted to hold him to the plea agreement in the first

place. Lemke knew he had to abandon his double jeopardy

defense in order to wrangle sentencing concessions from the

State. He made a calculated and voluntary choice to waive it,

and we should treat his choice no differently from the way the

Supreme Court treated the choice made by the defendant in

Adamson.

By failing to enforce Lemke’s express waiver, we risk

undermining the integrity of the plea bargaining process.

“Plea bargains are an important — indeed an essential —

component of our criminal justice system; they provide vast

benefits to the government, to our courts, to the public and to

LEMKE V. RYAN 29

criminal defendants.” United States v. Gonzalez, 981 F.2d

1037, 1040 (9th Cir. 1992) (Kozinski, dissenting). Parties

bargain with the expectation that the bargains they reach will

be enforced. Accordingly, our circuit has generally treated

plea agreements as binding contracts, United States v.

Gonzales-Melchor, 648 F.3d 959, 963 (9th Cir. 2011) (“We

construe a plea agreement as a contract between a

government and a defendant”), and absent good reason not to

we respect and enforce the bargains the parties make.

Here the State bargained for a guilty plea to a murder

charge, and offered Lemke a reduced sentence in exchange.

But it also bargained for finality — that if the judge accepted

and followed the plea agreement, the charge would stick and

Lemke’s murder conviction would be final. Our circuit has

described finality as “perhaps the most important benefit of

plea bargaining.” United States v. Navarro-Botello, 912 F.2d

318, 322 (9th Cir. 1990). Except apparently in this case. In

my view, it’s simply unfair to let Lemke flout his obligations

under the plea agreement, deprive the State of the benefit of

its bargain, and put us to the task of reconsidering legal issues

in a case that should have been final. See United States v.

Pratt, 657 F.2d 218, 220 (8th Cir. 1981) (defendant “pleaded

guilty, presumably, because he preferred the certainty of a

maximum of ten years to the risk of conviction and

punishment on each of six counts . . . . [W]e think it would be

unfair . . . to consider now the double-jeopardy claim urged

by defendant.”).

A deal’s a deal, and we should enforce this one.