Wednesday, June 19, 2013

Lemke v. Ryan, No. 11-15960 (Canby, author; N.R. Smith, also on panel; Burns (S.D. Cal.) concurring and dissenting) -- Full disclosure: I am cocounsel for the petitioner in this case.

The Ninth Circuit affirmed the denial of an Arizona state prisoner's § 2254 petition, holding that the state courts' rejection of his double jeopardy claim was not an unreasonable application of clearly established federal law. This was so, the court reasoned, because the Supreme Court had never held that a successive prosecution on a greater offense after a conviction on a "sub-lesser-included offense" (with the implied acquittal on the lesser-included offense) violated the Double Jeopardy Clause.

The petitioner was charged in two separate counts with armed robbery and felony murder predicated on armed robbery. At trial the jury convicted the petitioner of theft, a lesser-included offense of armed robbery under Arizona law, and hung on the murder count. After unsuccessfully litigating his double jeopardy claim in advance of the prosecution's threatened retrial, he pleaded guilty to the murder charge pursuant to a plea agreement.

(A) The court held that the appeal waiver in the plea agreement did not foreclose the petitioner's § 2254 petition. First, it did not expressly provide that he agreed to waive his right to file a § 2254 petition in federal court. Second, unlike the plea agreement in Ricketts v. Adamson 483 U.S. 1 (1987), none of the other terms in the appeal waiver could be construed as an explicit waiver of the right to litigate a double jeopardy claim in federal court.

(B) Nor did the petitioner's guilty plea implicitly waive his double-jeopardy claim. While a guilty plea ordinarily waives nonjurisdictional defects, under Menna v. New York, 432 U.S. 61 (1975), double jeopardy claims cannot be waived because they relate not to the defendant's factual guilt but instead to the government's power to prosecute the defendant. And because the double jeopardy claim could be resolved on the existing record, the guilty plea did not prevent the court from resolving it. Cf. United States v. Broce, 488 U.S. 563 (574) (1988).

(C) Under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), armed robbery and felony murder predicated on armed robbery are the "same offense." So are armed robbery and theft, because under Arizona law theft is a lesser-included offense of armed robbery. Therefore, theft and felony murder predicated on armed robbery are the "same offense" for double-jeopardy purposes.

(D) But the Arizona Court of Appeals concluded that jeopardy continued as to the felony-murder count because the jury hung on that count (even though it reached a verdict on the armed-robbery count). The court surveyed a "mix of... Supreme Court cases" involving a double jeopardy claim, but found none that "forecloses, as a matter of claim preclusion the retrial, in the same litigation, of a charge upon which the record shows that the jury was unable to come to a verdict." Although two closely relevant Ninth Circuit decisions pointed in opposite directions -- and one of those "provide[d] strong support" for the petitioner's claim, presenting a "very close factual situation to this case" -- and in fact were "almost impossible to reconcile," what mattered is that there was no clearly established federal law, as determined by the Supreme Court.

Judge Burns would have held that the plea agreement foreclosed the petitioner's § 2254 case.


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