Robert Lemke v. Charles Ryan

OPINION

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 Le-Blcmc instruction, which allowed the jurors to consider a lesser included offense if, after reasonable effort, they could not agree on the greater charged offense. State v. LeBlanc, 186 Ariz. 437, 924 P.2d 441, 442 (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 *1096reach 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 appeala-bility and appointed counsel.

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, — U.S. -, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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’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. *1097Lemke’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.

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, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (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, 96 S.Ct. 241, 46 L.Ed.2d 195 (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, 109 S.Ct. 757 (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, 109 S.Ct. 757 (internal quotation marks and citation omitted), and where his claim does not rely on evidence outside the “indictments and the existing record,” id. at 576, 109 S.Ct. 757. 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, 109 S.Ct. 757. 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.

*1098A 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 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, 107 S.Ct. 2680, 97 L.Ed.2d 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, 107 S.Ct. 2680. 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, 107 S.Ct. 2680.

Adamson testified and was sentenced for second-degree murder pursuant to the agreement. The convictions of his cocon-spirators 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 agreement, precisely equivalent to an agreement waiving a double jeopardy defense.

Id. at 10, 107 S.Ct. 2680 (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 *1099reason 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 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, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The issue preclusion, or collateral estoppel, aspect of double jeopardy “precludes the Government from relitigat-ing any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).

The Arizona Court of Appeals held that neither aspect of double jeopardy barred Lemke’s retrial for felony murder. Lemke v. Rayes, 213 Ariz. 232, 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, 118 S.Ct. 2246, 141 L.Ed.2d 615 (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 fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (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, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (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, 100 S.Ct. 1432, 63 L.Ed.2d 715 (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 *1100armed robbery, the jury impliedly acquitted Lemke of armed robbery. See Green v. United States, 355 U.S. 184, 190-91, 78 S.Ct. 221, 2 L.Ed.2d 199 (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, 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, 104 S.Ct. 3081, 82 L.Ed.2d 242 (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. 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, 78 S.Ct. 221, 2 L.Ed.2d 199 (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, 78 S.Ct. 221; accord, Price v. Georgia, 398 *1101U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (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, 97 S.Ct. 2221, 53 L.Ed.2d 187 (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 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, 104 S.Ct. 3081, 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, 104 S.Ct. 2536, 81 L.Ed.2d 425 (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, 104 S.Ct. 2536. Finally, in Blueford v. Arkansas, — U.S. -, 132 S.Ct. 2044, 2050-51, 182 L.Ed.2d 937 (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 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, — U.S. -, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (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 Block-burger, was the “same offense” as felony *1102murder. 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 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 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 ‘