Lemke v. Ryan

719 F.3d 1093 (9th Cir. 2013)

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Nature of the Case

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Facts

Chance was robbed and shot in the chest. He died at the scene. P 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. The court instructed the jury that the armed robbery charge included the lesser offense of theft and, similarly, that the charge of conspiracy to commit armed robbery included the lesser charge of conspiracy to commit theft. The trial court also provided an instruction, which allowed the jurors to consider a lesser included offense if, after reasonable effort, they could not agree on the greater charged offense. The jury was not instructed on any lesser included offense for felony murder. The jury returned guilty verdicts on the lesser included offenses of theft and conspiracy to commit theft. It left blank the verdict forms for armed robbery and conspiracy to commit armed robbery. The jury could not reach a verdict on felony murder predicated on armed robbery. The court declared a mistrial on the felony murder count and sentenced P to a total of twenty-seven years' imprisonment for the theft and conspiracy convictions. D sought retrial on the felony murder count. P moved for dismissal, arguing that double jeopardy barred his retrial for felony murder predicated on armed robbery. The court denied P's motion. The Court of appeals affirmed and the Arizona Supreme Court denied review. P filed a pro se 28 U.S.C. § 2254 petition. The district court denied the petition and declined to issue a certificate of appealability. P appealed