UNITED STATES COURT OF APPEALS TENTH CIRCUIT

WILLARD DEAN JACKSON, Petitioner–Appellant,

v. JOHN WHETSEL, Sheriff, Respondent–Appellee. No. 08-6252 (D.C. No. 5:08-CV-00486-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and O’BRIEN , Circuit Judges.
Willard Dean Jackson appeals from an order dismissing hi s 28 U.S.C. § 2254 habeas petition under Younger v. Harris , 401 U.S. 37 (1971). Exercising jurisdiction pursuant to 28 U.S.C. § 2253, we reverse and remand to the district court with instructions to grant the writ.
I Jackson was charged in Oklahoma state court of making a lewd or indecent

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 22, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - proposal to a child under sixteen in vi olation of Okla. Stat. tit. 21, § 1123. 1 The information alleged that Jackson: knowingly and intentionally made a le wd and indecent proposal to [the victim], who was at the time 15 years of age, that such child have unlawful sexual relations with anot her person, to wit: Willa rd Jackson asked [the victim] to take nude p hotographs of herself and give them to him and Willard Jackson asked [the victim] to touch herself and ma st[u]rbate while he listened, contrary to the provisi ons of section 1123 of title 21 of the Oklahoma Statutes, and against the pe ace and dignity of the State of Oklahoma. (capitalizations altered). At tr ial, the jury was in structed that it could convict only if the state proved beyond a reasonable doubt that (1) the defendant, who was at least three years older than the victim, (2) knowingly and intentionally, (3) made an oral lewd or indecent proposal, (4) to a child under sixtee n years of age, (5) fo r the child to have unlawful sexual relations or intercourse with any person. The ju ry returned a guilty verdict on the sole charge. On direct appeal, the Oklahoma Court of Crimin al Appeals (“OCCA”)

1 Section 1123 states: A. Any person who shall knowingly and intentionally: 1. Make any oral, written or electroni cally or computer-generated lewd or indecent proposal to any child under si xteen (16) years of age for the child to have unlawful sexual relations or sexual intercourse with any person . . .

. . . . upon conviction, shall be de emed guilty of a fe lony . . . . The provisions of this section shall not apply unless the accused is at least three (3) years older than the victim.- 3 - unanimously reversed Jackson’ s conviction because the state did not introduce evidence to prove the fifth element of the crime; th ere was no evidence to suggest that Jackson proposed that the victim have unlawful sexu al relations or intercourse with any person

. By a three-to-two margin, ho wever, a majority of the co urt ruled that the evidence adduced at trial proved that Jackson was gu ilty of a different crime, solicitation of a minor to perform or prepare obscene material or child pornography in violation of Okla. Stat. tit 21, § 1021(B). 2 Treating § 1021(B) as a lesser-i ncluded offense of § 1123, the OCCA remanded to the district court to en ter a new judgment of conviction under § 1021(B) and to resentence Jack son accordingly. Jackson filed a petition for rehearing arguing that the imposition of a conviction of a crime for which he was not charged or tried by jury violated his rights under the Sixth Amendment. The OCCA denied the petition. Before resentencing could take place, Jackson filed a 28 U. S.C. § 2254 habeas

2 Section 1021(B) reads: B. Every person who: 1. Willfully solicits or aids a minor child to perform; or 2. Shows, exhibits, loans, or distribute s to a minor child any obscene material or child pornography for the purpose of induc ing said minor to participate in, any act specified in paragra phs 1, 2, 3 or 4 of subsection A of this section shall be guilty of a felony, upon conviction . . . . The referenced subsection A describes ind ecent exposure, indecent exhibitions, obscene material, and child pornography. See Okla. Stat. tit. 21, § 1021(A).- 4 - petition in the United States District Court fo r the Western District of Oklahoma seeking the dismissal of the charges, release from stat e custody, and an injunction against future state prosecutions in the case. The dist rict court dismissed the habeas petition, concluding that it was barred under the Younger abstention doctrine. After Jackson filed a notice of appeal, we granted a certificate of appealability.
II We review de novo a district cour t’s decision to abstain under Younger . See Walck v. Edmondson , 472 F.3d 1227, 1232 (10th Cir. 2007). Younger requires federal courts to abstain from interventi on into state criminal proceedi ngs if: “(1) state judicial proceedings are ongoing; (2) state proceedings implicate an important state interest; and (3) the state proceedings offe r an adequate opportunity to litigate federal constitutional issues.” Winnebago Tribe v. Stovall , 341 F.3d 1202, 1204 ( 10th Cir. 2003) (citation omitted). If these three conditions are satisfi ed, “Younger abstention is non-discretionary and, absent extraordinary circumstances, a di strict court is required to abstain.” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n , 319 F.3d 1211, 1215 (10th Cir. 2003) (citation omitted). We conclude that Younger abstention is inappropriate because state proceedings do not provide Jackson an adequate opportuni ty to present his cl aim. “Typically, a plaintiff has an adequate opportunity to raise federal claims in state court unless state law clearly bars the interposition of the federa l statutory and constitutional claims.” Id. (quotation and altera tion omitted); see also Younger , 401 U.S. at 45 (“The accused- 5 - should first set up and rely upon his defens e in the state courts . . . unless it plainly appears that this course would not afford adequate protection. ” (quotation omitted)). The district court held that Jackson could raise his federa l claims in a state petition for post-conviction relief. In so holding, ho wever, it ignored the fact that the state’s highest court has already rejected the claims Jackson seeks to present. The OCCA has been abundantly clear that post-conviction pe titions will not provide a second bite at the apple: On numerous occasions this Court has set forth the narrow scope of review available under the amended Post-Conv iction Procedure Act. The PostConviction Procedure Act was neither designed nor intended to provide applicants another direct appeal . The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims that could have been raised in previous appeals but were not are generally waiv ed; claims raised on direct appeal are res judicata

. Murphy v. State , 124 P.3d 1198, 1199-1200 (Okla. Cr im. App. 2005) (citations omitted, emphases added); see also Okla. Stat. tit. 22, § 1086 (“Any ground finally adjudicated . . . in the proceeding that resulted in the conviction . . . may not be the basis for a subsequent application [for post-conviction relief].”); Woodruff v. State , 910 P.2d 348, 350 (Okla. Crim. App. 1996) (“The application of the [p ost-conviction procedure] act is limited to only those claims which, for whatever reas on, could not have be en raised on direct appeal. Issues which were ra ised and decided on direct appeal are barred from further consideration by res judicata.” (citations and italics omitted)); Hale v. State , 807 P.2d 264, 267 (Okla. Crim. App. 1991) (“Petitioner is . . . barred from asserting any claims- 6 - which have been, or which could have been, raised previously in his direct appeal. It is not the purpose of the Post-Conviction Proce dure Act, to provide a second appeal under the mask of post-conviction applica tion.” (citation and quotation omitted)); cf. Crown Point I, LLC , 319 F.3d at 1215-16 (holding no adequate opportunity to raise federal claims based on operation of state preclusion rules). Unlike the parties in Huffman v. Pursue, Ltd. , 420 U.S. 592, 610 (1975), and Middlesex County Ethics Commissi on v. Garden State Bar Ass’n , 457 U.S. 423, 435-36 (1982), Jackson does not seek to excuse a failure to present claims to the relevant state tribunal. Nor does Jackson argue his claim is doomed based on the rejection of similar claims in other cases. See Hicks v. Miranda , 422 U.S. 332, 350 & n.18 (1975) (rejecting contention that a court need not apply Younger because an intermediate appellate court had denied similar claims in another case). Rather, Jackson correctly points out that his constitutional claims have already been presente d to, and rejected by, the highest court in the state. It beggars belief to suppose that Jackson has an adequate opportunity to litigate his federal claims before the OCCA wh en that court committed the constitutional violation at issue, see Part III, infra , has already rejected the ve ry claims Jackson asks the federal courts to consider, and has repeatedly stressed that it will not reconsider in postconviction proceedings arguments rejected on direct appeal. We do not require a federal claimant to file seriatim petitions for rehearing ad infinitum. Moreover, the state does not contend that its post-conviction procedures permit Jackson to re-assert his claims. Rather, it acknowledges that placing “this matter back in- 7 - front of the OCCA” presents “a difficult issue. ” It argues that Jackson has an adequate opportunity to present his clai ms because the parties can jo intly request that the OCCA amend its order to allow Jackson to be retried or, if that fails, the state can independently request a new trial at the district court leve l. Yet Jackson does not seek retrial, he requests release from custody and an injunction against retrial. The state’s first proposal is simply an offer of settleme nt: If Jackson agrees to wa ive his double jeopardy claim, the state will support his Sixth Amendment claim (albeit with no guarantee the OCCA will grant relief). Such an o ffer does not provide Jackson an adequate opportunity to litigate his claims in state court. The second proposal suggests that the trial court may disregard the OCCA’s mandate by ordering re trial rather than entering a conviction. However, under Oklahoma law, “the trial tribunal has no power to reopen issues precluded by the terms of an appellate opini on but must obey the mandate’s direction.” Chamberlin v. Chamberlin , 720 P.2d 721, 728 n.35 (O kla. 1986). More fundamentally, both proposals misc onstrue the third prong of the Younger test. The state’s argument presumes there is an adequate state foru m whenever there is a theoretical possibility—no matter how minute—t hat Jackson’s conviction will not stand. But in determining whether a litigant has an ad equate opportunity to present his claims, we do not search for poten tial outcomes that might benef it the petitioner; the possibility of a pardon, for example, does not force us to abstain under Younger . Rather, we ask if the federal plaintiff has the opportunity to present his particular federal constitutional claims in state court proceedings. See Moore v. Sims , 442 U.S. 415, 430 (1979) (“[T]he- 8 - only pertinent inquiry is whether the state proc eedings afford an ade quate opportunity to raise the constitutional claims . . . .”); Juidice v. Vail , 430 U.S. 327, 337 (1977). Due to the highly unusual procedural hist ory of this case, Jackson is unable to present his federal claims in state court. Accordingly, the district court erred by dismissing these claims under Younger

. III Having concluded that the di strict court erred in di smissing Jackson’s petition on abstention grounds, we exercise our discretion to proceed to the merits of Jackson’s Sixth Amendment claim. 3 “Although we will generally declin e to consider in the first instance issues not considered by the district court, we will make an exception where injustice might otherwise result, or where the issue pr esents only a question of law.” Sac & Fox Nation v. Norton , 240 F.3d 1250, 1264 (10th Cir. 2001) (quoting United Food & Commercial Workers Union v. Sw . Ohio Reg’l Transit Auth. , 163 F.3d 341, 360 n.9 (6th Cir. 1998)); see also Ohlander v. Larson , 114 F.3d 1531, 1538 (10th Cir. 1997) (“Although the district court’s failure to apply the correct le gal standard could serve as a basis for remand, in the interest of efficiency and judicial economy, and in the interest of

3 Because Jackson’s claims are against a st ate rather than the federal government, the Fourteenth Amendment is technically at issue. However, the relevant Sixth Amendment rights have been incorporated so as to apply against the states. See Duncan v. Louisiana , 391 U.S. 145 (1968); In re Oliver , 333 U.S. 257 (1948) . We accordingly refer to Jackson’s Sixth Amendment claim to distinguish it from his Fifth Amendment double jeopardy claim, which also applies ag ainst the states by way of the Fourteenth Amendment, see Benton v. Maryland , 395 U.S. 784 (1969).- 9 - providing immediate guidance as to the most appropriate direction of this case . . ., we turn to the merits . . . .”). Several factor s inform our choice: The facts relevant to Jackson’s Sixth Amendment claim are not in di spute, the issue is purely legal (and also not in dispute), and judicial economy concerns favor consideration by this court given the patent unconstitutionality of the OCCA’s order. Moreover, we cannot ignore the fact that Jackson has been imprisoned under an infirm order for mo re than two and a half years. We hold that Jackson is entitled to ha beas relief because the OCCA order was “contrary to, or involved an unreasonable app lication of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The state wisely concedes that solicitation of a minor to perform or prepare any obscene material or child pornography in violation of Okla. Stat. tit 21, § 1021(B) is not a lesser included offense of making a lewd or indece nt proposal to a child under sixteen in violation of Okla. Stat. tit. 21, § 1123. The state further admits th at the jury was never instructed on the elements of § 1021(B). In so doing, it has conceded that the OCCA’s order violated Jackson’s clearly es tablished Sixth Amendment rights. In Cole v. Arkansas , 333 U.S. 196 (1948), the Supr eme Court addressed a state appellate court order essentially identical in all relevant ways to the one under consideration. In that case, the petitioners we re charged in state court with a violation of § 2 of Act 193, which made it illegal “to assemble at or ne ar any place where a ‘labor dispute’ exists and by force or violence pr event . . . any person from engaging in any lawful vocation, or . . . to promote, encour age or aid any such unlawful assemblage.”- 10 - Cole , 333 U.S. at 198. Section one of the sa me act made it “unlawful for any person by the use of force or violence, or threat of the use of force or violence, to prevent or attempt to prevent any person from engagi ng in any lawful vocation.” Id. at 199. The jury was instructed on the elements of § 2, and convicted on that charge. Id . On appeal, the Arkansas Supreme Court held that the fact s alleged in the info rmation—which accused the petitioners of “using force and violence to prevent [a certain individual] from working”—related to § 1, and affirmed a conviction under § 1 in lieu of addressing petitioners’ constitutional challenges to § 2. Cole , 333 U.S. at 200. The state court denied a petition for rehearing adva ncing due process claims. Id. The Supreme Court roundly reject ed the state court’s order: [The state court] affirmed [petitioners ’] convictions as though they had been tried and convicted of a violation of § 1 when in truth they had been tried and convicted only of a violation of a single offense charged in § 2, an offense which is distinctly and subs tantially different from the offense charged in § 1. To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court. We are constrained to hold that the petitioners have been denied safeguards guaranteed by due process of law—safeguards essential to liberty in a government dedicated to justice under law. Id. at 202. The Court explained that “[i]t is as much a violation of due process to send an accused to prison following convi ction of a charge on which he was never tried as it would be to convict him upon a char ge that was never made.” Id. at 201; see also Jackson v. Virginia , 443 U.S. 307, 314 (1979) (“It is axiomatic that a conviction upon a charge not made or upon a ch arge not tried constitutes a denial of due process.”);- 11 - Sallahdin v. Gibson , 275 F.3d 1211, 1227 (10th Cir. 2002). The OCCA ordered Jackson convicted of a crime for which he was neither charged nor tried, by a three-to-two vote no le ss. A jury has never been asked to consider the elements of § 1021(B), nor has any jury found those elements beyond a reasonable doubt. 4 The OCCA’s order falls far outside th e bounds of permissible judicial action under basic due process principals, and is cont rary to clearly established federal law. Indeed, more than sixty years ago, the Cole court held that “[n]o principle of procedural due process is more clearly es tablished than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge.” 333 U.S. at 201. Jackson was denied these core due process protections. 5 Accordingly, he is

4 We are not faced with a situation in which the elements of another crime are completely subsumed by the elem ents of the charged crime. For example, an appellate court could be faced with a defendant who wa s charged with drug possession with intent to distribute. If that court concludes that insufficient evidence sup ported the intent to distribute element, it may nevertheless be the case that evidence was sufficient—and the jury conclusively found—all the elements of simple possession. We have no occasion to decide today whether an appella te court could order such a de fendant convicted of simple possession under those circumstances.

5 The OCCA dismissed these Sixth Amendm ent concerns on the ground that the factual allegations of the information put Ja ckson on notice that he was required to defend against a § 1021(B) ch arge. The Supreme Court rej ected this contention in Cole ; despite factual allegations contained in the in formation that appeared to relate to a § 1 charge, the Court explained: The petitioners read the information as charging them with an offense under § 2 of the Act, the language of which the information had used. The trial judge construed the information as charging an offense under § 2. He instructed the jury to that effect. He charged the jury that petitioners were Continued . . .- 12 - unambiguously entitled to habeas relief. A state appellate court has no authority to simply order a conviction under § 1021(B). Be cause Jackson is being held pursuant to a constitutionally infirm order, he must be released from custody.
IV Jackson also argues that a subsequent charge under § 1021(B) would violate his rights under the Double Jeopardy Clause, and accordingly seeks an injunction against future prosecution. We cannot address Ja ckson’s double jeopardy claim on the merits because it is not yet ripe. The ripeness doctrine is intended to “to pr event the courts, through the avoidance of premature adjudication, from entangling th emselves in abstract disagreements.” Abbott Labs. v. Gardner , 387 U.S. 136, 148 (1967), ov erruled on other grounds by Califano v. Sanders , 430 U.S. 99, 105 (1977). Ripeness is a “jurisdictional prerequisite” to our review, and thus “may be examined by this court sua sponte.” Keyes v. School Dist. No. 1 , 119 F.3d 1437, 1444 (10t h Cir. 1997) (italics omitte d). In determining whether an issue is ripe, we must “evaluate both the fitness of the issue[] for judicial decision and the hardship to the parties of withholding court co nsideration.” Abbott on trial for the offense of promoting an unlawful assemblage, not for the offense “of using force and violence.” Without completely ignoring the judge’s charge, the jury could not ha ve convicted petitioners for having committed the separate, distinct, and su bstantially different offense defined in § 1. Cole , 333 U.S. at 200. Identical circumstance s are presented here, and the same result is required.- 13 - Labs. , 387 U.S. at 149. With respect to the first factor, we cons ider “whether the case involves uncertain or contingent future events that may not occu r as anticipated, or indeed may not occur at all.” New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1499 (10th Cir. 1995) (quotation omitted). A lthough the state certainly appears intent on charging Jackson under § 1021(B), we ha ve difficulty considering a double jeopardy claim in the absence of a second information. Without a specific charging document to review, our double jeopardy analysis would be necessarily hypothetical. See United States v. Brown , 155 F.3d 431, 435 (4th Cir. 1998) (declinin g to address unripe double jeopardy claim because second charge might fall into exception permitting successive pros ecution “when the lesser charge is instituted because the ad ditional facts needed to prosecute the more serious crime have not yet occurred or have not been discovered desp ite the exercise of due diligence”); United States v. Tovar-Rico , 61 F.3d 1529, 1532 ( 11th Cir. 1995) (“If the government decides to proceed with anot her trial of [defendant], she may raise the double jeopardy issue which would then be ripe for decision. We cannot speculate what further proceedings, if any, will take place.”). Even assuming that the state will seek to try Jackson for a violation of § 1021(B), we have no particular factual allegations to compare to the original charge and trial. “Even though a challenged [state action] is sure to work the injury alleged . . . adjudication might be postponed until a better factual record might be available.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300 (19 79) (quotation omitted).- 14 - Unless and until Jackson is actu ally charged, his double je opardy challenge is unfit for proper judicial review. As to the second ripeness factor, we must ask “whether the challenged action creates a direct and immediate dilemma fo r the parties.” New Mexicans for Bill Richardson , 64 F.3d at 1499 (quotation omitted). A lthough our conclusi on that Jackson’s double jeopardy claim is unripe certainly pla ces him in an uncomfortable position, it does not impose an immediate dilemma. If Jacks on is charged with a violation of § 1021(B), he will have an opportunity to advance his double jeopardy argument before the trial court. We recognize “that the Double Jeopar dy Clause protects an individual against more than being subjected to double punishme nts. It is a guarantee against being twice put to trial for the same offe nse.” Abney v. United States , 431 U.S. 651, 660-61 (1977). But Jackson will be able to interpose his claim prior to trial. Moreover, we have held that a double jeopardy claim may be heard in fede ral court on a § 2241 habeas petition, and that such petitions are not subject to Younger abstention. See Walck , 472 F.3d at 1233, 1235. In light of the hypothetical nature of Jackson’s double jeopardy claim and the availability of multiple layers of review fo r that claim should he be charged under § 1021(B), we conclude that we lack jurisdiction to consider it.- 15 - V For the foregoing reasons, we REVERSE the district court’s dismissal of Jackson’s habeas petition and REMAND with instructions to grant the writ.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge