Selsor v. Workman, 2011 U.S. App. LEXIS 8927

Selsor, an Oklahoma inmate, was retried after Kaiser II invalidated his original conviction due to an earlier ineffective-assistance claim.
OCCA Turnbull overruled Riggs v. Branch, allowing retrial to seek the death penalty under 1976 statutes for crimes committed under the 1973 statute.
Selsor challenged retroactive death-penalty exposure as ex post facto and violative of due process; Turnbull addressed this.
During retrial, the state pursued the death penalty with a Bill of Particulars alleging aggravating factors from the 1976 statute.
The jury ultimately imposed death on first-degree murder; the court later upheld or modified related convictions and sentences.
Selsor filed federal habeas corpus petition under AEDPA; issues arose concerning due process, double jeopardy, ex post facto, equal protection, and prosecutorial conduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does overruling Riggs in Turnbull violate due process under Bouie?	Selsor argues retroactive overruling deprived fair warning.	OCCA Turnbull concluded no due process violation.	No due-process violation; overruling Riggs did not change the crime or punishment.
Did the retrial violate double jeopardy by retrying after death-penalty relief?	Retrial to impose death after original death-exposure was acquittal-prohibited.	Bullington/Rumsey doctrine allows retrial; no acquittal on the merits.	No double jeopardy violation; no acquittal on the merits occurred.
Was the 1998 trial improperly instructed on 1973 vs 1976 murder statute ex post facto due to elements?	Instruction error violated due process by applying a different statute.	Instructions considered as a whole informed the 1973 elements.	The error was due-process with ex post facto effect; harmless error analysis applied.
Does equal protection bar death penalty exposure due to pre- vs post-1976 statutes?	Selsor treated differently from similarly situated defendants.	Turnbull properly treated him as awaiting trial under current statutes.	OCCA’s comparison group was reasonable; no equal protection violation.
Did vindictive prosecutorial conduct require reversal?	Prosecution acted vindictively after habeas relief to seek death.	No objective evidence of vindictiveness; standard not met.	No vindictive-prosecution due process violation established.

Bouie v. City of Columbia, 378 U.S. 347 (U.S. 1964) (unforeseeable judicial expansion can violate due process)
Furman v. Georgia, 408 U.S. 238 (U.S. 1972) (set stage for death-penalty reforms)
Woodson v. North Carolina, 428 U.S. 280 (U.S. 1976) (mandatory death penalty schemes violate Eighth Amendment)
Gregg v. Georgia, 428 U.S. 153 (U.S. 1976) (bifurcated procedures valid with guidance for sentencing)