Lemke v. Ryan

Original jeopardy has not terminated when the jury fails to reach a verdict. A defendant does not waive the Double Jeopardy claim by entering a guilty plea or by the broad waiver in the plea agreement. If the record does not establish that the jury necessarily decided guilt or innocence when it failed to return a verdict retrial is not barred by collateral estoppel.

Robert D. Lemke 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 but failed to reach a verdict on the felony murder charge. The state sought retrial on the felony murder charge and defendant moved for dismissal claiming retrial was barred by double jeopardy. Lemke’s motion was denied and he subsequently pleaded guilty in an agreement for concurrent sentences. He then filed a pro se argument reasserting his double jeopardy claim to which the district court denied and the Ninth Circuit granted a certificate of appealability and appointed counsel. The Ninth Circuit held that the defendant did not waive a collateral attack or a double jeopardy claim by entering a guilty plea or by the broad waiver in the plea agreement. The panel then held that the retrial prosecution was for the “same offense” but was not a “successive” prosecution so original jeopardy had not terminated when the jury failed to reach a verdict and so the district court’s rejection of defendant’s double jeopardy claim was not “contrary to nor an unreasonable application of clearly established federal law.” Finally, the court held that the record did not establish whether the jury “necessarily decided” guilt or innocence when it failed to reach a verdict so retrial was not barred by collateral estoppel. AFFIRMED.