Robert Lemke v. Charles Ryan, 719 F.3d 1093

Background

Lemke was charged in Arizona with felony murder predicated on armed robbery, armed robbery, and conspiracy to commit armed robbery.
Jury convicted on theft and conspiracy to commit theft; hung on felony murder predicated on armed robbery; mistrial declared on that count.
Arizona Le-Blanc instruction allowed lesser included offenses; no instruction for felony murder.
State sought retrial on the felony murder count; Lemke challenged on double jeopardy grounds.
Lemke pleaded guilty to felony murder in exchange for a concurrent life sentence; he then challenged the retrial via a federal habeas petition.
The district court denied relief; the Ninth Circuit granted a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lemke waived the double jeopardy defense.	Lemke asserted waiver via plea; collateral attack not expressly waived.	State argued waiver covered all motions/defenses.	Waiver not clearly limited to trial issues; merits proceed.
Whether Lemke’s double jeopardy claim was precluded by prior waiver.	Claim is waived by plea.	Waiver not explicit for double jeopardy defense.	Not clearly waived; merits addressed de novo.
Whether retrial for felony murder after implied acquittal of armed robbery violated double jeopardy (same offense).	Under Blockburger, armed robbery and felony murder are the same offense, retrial barred.	Arizona courts concluded jeopardy continued on felony murder; retrial not barred.	Arizona court did not unreasonably apply Supreme Court precedent; retrial not barred under §2254(d)(1).
Whether collateral estoppel barred retrial for felony murder.	Jury could have necessarily decided armed robbery not committed.	Record does not show necessary decision against armed robbery.	Arizona court reasonably concluded no collateral estoppel bar.
Whether the state court properly analyzed the interplay of hung counts and included offenses under double jeopardy law.	Preclusion should apply given implied acquittal and same-offense logic.	Departs on complex jurisprudence; no clear rule precludes retrial.	Court acknowledged complexities but rejected claim under §2254(d)(1).

Key Cases Cited

United States v. Broce, 488 F.3d 563 (1989) (guilty pleas generally bar collateral challenges to factual guilt; exceptions exist for challenges to authority to be in court)
Menna v. New York, 423 U.S. 61 (1975) (guilty plea removes issue of factual guilt from case; but exceptions for challenges to power to prosecute)
Ricketts v. Adamson, 483 U.S. 1 (1987) (plea agreements may waive double jeopardy defenses; explicit naming not required in all cases)
Green v. United States, 355 U.S. 184 (1957) (implied acquittal when jury convicts on lesser charge; jeopardy analysis in related cases)
Richardson v. United States, 468 U.S. 317 (1984) (failure to reach verdict does not terminate jeopardy; retrial permissible in some contexts)
Ohio v. Johnson, 467 U.S. 493 (1984) (disposition of counts in same indictment; no single trial contemplated for multiple offenses)
Blueford v. Arkansas, 132 S. Ct. 2044 (2012) (retrial permitted after hung jury on capital charge where no verdict entered)
Forsberg v. United States, 351 F.2d 242 (1965) (earlier circuit precedent on jeopardy termination with hung charges in same indictment)
United States v. Jose, 425 F.3d 1237 (2005) (retrial of greater offense after reversal of greater offense convictions in same indictment; different from separate offenses)
Wilson v. Czerniak, 355 F.3d 1151 (2004) (near-miss with lemma; treatment of acquittal on lesser included offense barring retrial for greater offense)
Yeager v. United States, 557 U.S. 110 (2009) (collateral estoppel limits when issue not necessarily decided by jury)
United States v. Tateo, 377 U.S. 463 (1964) (finality and retrial considerations in plea contexts)
Gonzalez-Melchor, 648 F.3d 959 (2011) (plea agreements construed as contracts; enforceability of bargains)