F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T D. L E M K

E , Petitioner-Appellant

,

v

.

C H A R L E S L

. R Y

A N and A T T O R

N E Y G E N E R A L O F T H E S T A T E O F A R I Z O N A , Respondents-Appellees

. N o. 11-15960

D.C. No. 2:09-cv-01059- DGC

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na David G. Campbell, District J udg e, Presiding

Arg ued and Submitted March 6, 2013—Tucson, Ariz ona

F iled J une 19, 2013

B efore: W illiam C. Canby , J r. and N. Randy Smith, Circuit J udg es, and L arry A. B urns, District J udg e

. *

Opinion by

J udg e Canby ; Partial Concurrence and Partial Dissent by J udg e B urns

* T h e Ho n o rab l e La r r y A

. B u rn s, District J u d g e f or th e U.S. District Co u rt f o r th e So u th ern District o f Calif o rn ia, sittin g b y

d esig n atio n

.L E M K E V

. R Y A N 2

SUMMARY * *

Habeas Corpus

The p anel affirmed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas corpus petition based on the D ouble J eopardy Clause.

Petit i o ner was charg ed with armed robbery

, felony murder predicated o n a rmed robbery

, and co nspiracy to commit armed robbery . The jury returned g uilty verdicts on the lesser included offenses of theft and conspiracy to commit theft, but was u nable to reach a verdict o n the felony murder charg e. After unsuccessfully opposing hi s r etrial on the

r e m aining charg e, petitioner pleaded g uilty in ex chang e fo r a concurrent sentence.

T h e p anel first h eld that petitioner did not waive his Double J eopardy claim merely by entering a g uilty p lea, a

nd

was not convinced that he waived it in the broad w aiver clause of his plea ag

reement.

The p anel nex t determined that the prosecution o f petitioner for armed robbery felony murder after his implied acquittal o f armed robbery was a prosec u t i on for the “same offense,” but was not a “successive” prosecution for Double J eopardy purposes because orig inal jeopardy h ad not terminated for the count for which the jury failed t o reach a verdict. Consequently

, the state court’s rejection o f

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L E M K E V

. R Y A N 3

petitioner’s claim w as neither contrary to nor an unreasonable application of clearly

established federal law.

The p a nel also h eld that retrial w as not barred b y the collateral estoppel d octrine, because petitioner h ad n ot demonstrated that the jury “necessarily decided” that he h ad
not committed arm e d r o bbery when it failed to return a verdict on that count.

D i s trict J udg e B u rns concurred in part and dissented i n part. H e did not ag ree that petitioner could pursue his D ouble J eopard y c laim after sig ning the p lea ag reement, b ut he
ag reed that the state c o urt’s re j e c tion of that claim was neither c ontrary to nor a

n unreasonable application of clearly established federal law.

COUNSEL

Golnoosh F a

rz aneh (arg

ued), A s s i stant F e deral Public Defender, and Keith J

. Hilz endeg er, Research & W riting Specialist, F ederal P u blic Defenders’ Office, Phoenix

, Ariz ona, for Petitioner-Appellant.

J effrey L

. Sparks (arg

ued), Assistant Attorney General; Kent E. Cattani, Division Chief Counsel; J oseph T. Maz iarz

, Section Chief Counsel, Phoenix

, Ariz o na, for Responde n tsAppellees.L E M K E V

. R Y A N 4

OP INION

CANB Y, Senior Circuit J udg e :

Petitioner Robert D. L emke a p peals the district court’s d e n ial of his p etition for a writ of habeas corpus b r o u gh t under 2 8 U.S.C. § 2254. L emke contends that subjecting him
to retrial for felony murde r v iolated the Double J eopardy Clause because a jury earlier had impliedly acquitted him of the robbery unde r l y ing the f elony murder charg e. W e conclude that the Ariz ona Court of Appeals’ holding that double jeopardy d id not bar L emke’s retrial was not “ contrary to, or . . . an unreasonable a p plication of, clearly e stablished F ederal law, a s d e termined by the Supreme Court of the United States.” 28 U.S.C. § 2254( d)(1). A ccording ly

, we affirm.

BACK G ROUND

I n A u g ust 2002, Charles Chance was robbed and shot

once in the chest. He died at the scene. Petitioner was then indicted in Ariz ona state c ourt o n three counts stemming from that incident: (1) felony murder predicated on armed robbery ; (2) armed robbery ; and ( 3 ) conspiracy to commi t armed robbery

.

At trial, the court instructed the jury that the armed robbery charg e in Count I I included the lesser offense of theft and, similarly

, that the charg e of conspiracy to commit armed robbery in Count I I I included the lesser c harg e of conspiracy
to com m i t t h e ft. I n accordance with Ariz ona law, the trial
court also provided a LeBlanc instruction, which allowed the jurors to consider a lesser included offense if, after reasonable effort, they could not ag ree on t h e g reater charg e d offense.L E M K E V

. R Y A N 5

State v. LeBlanc

, 924 P.2d 441, 442 ( A riz

. 1996). The jury

was not instructed on a

ny lesser i n c l u ded offense for Count I , felony murder.

After seven day s of deliberation, the jury returned g uilty verdicts on the lesser included offenses of t h e ft a nd conspiracy to commit theft. The jury left blan k the verdict forms for armed robbery and conspiracy to commit armed robbery

. As to felony murder predicated on armed r obbery

, the jury r eported that it could n ot reach a verdict. The court declared a mistrial on the felony murder count and sentenced L emke to a total of twenty

- seven y ears’ imprisonment for the theft and conspiracy

convictions.

The State then soug ht retrial on the felony murder c ount. L emke moved for dismissal, a r g uing that double jeopardy barred his retrial for felony mur d e r predicated on armed robbery

. T he trial court denied L emke’s motion, the A riz o na Court o f Appeals rejected L emke’s double jeopardy c laim in a reasoned decision, a

n d the Ariz ona Supreme Court denied review. Thereafter, L emke p leaded g uilty to f elony murder in ex chang e for a concurrent life sentence with the possibility of parole after 25 y

ears.

L emke then filed a p ro se 28 U.S.C. § 2254 petition in federal d istrict court, reasserting h is arg ument that the D ouble J eopardy Clause barred his retr ial for felony murder. The district court denied the peti t i o n and declined to issue a certificate of appealability

. L e mke appealed

, and this court g ranted a certificate of appealability and appointed counsel.L E M K E V

. R Y A N 6

D ISCUSSION

W e review de novo the district court’s denial of a h abeas petition. F

errizz v. Giurbino

, 432 F

. 3d 990, 992 (9th Cir. 2005). U nder the A ntiterrorism and Effective Death Penalty Act ( “AEDPA”), we may g rant L e mk e ’s p e tition for h abeas relief only if the d e c ision of the Ariz ona Court of Appeals “was contrary to federal law then c learly e stablished in the holding s o f [ the Supreme] Court; or

. . . involved an unreasonable application o f s u ch law.” Harrington v

. Richter

, 1 31 S. Ct. 770, 785 (2011) (internal quotation marks and citations omitted). B ecause the Ariz ona Supreme Court denied review in a summary order, we look throug h that order
to the last reaso n ed state court decision. See Y lst v

. Nunnemaker , 501 U.S. 797, 806 (1991).

A. Waiver

As an initial matter, we address two issues of waiver. The first is whether L emke’s ex press waiver of appeal in his plea
ag reement also waived his rig ht to br i n g t h i s petition for collateral rel i ef. The g overnment does not arg ue that L emke’s ex p ress waiver of appeal wa i v e d his r ig ht to bring

a collateral a ttack under 28 U .S.C. § 2 254, but the partial dissent here does. Our c ircuit p re cedent makes clear, however, that a waiver of collateral attack must b e ex press, and that a p lain waiver of appeal does not suffice. See United States v. Benboe , 157 F .3d 1181, 1183 (9th Cir. 1998) (“W e have held that even where a plea ag reement specifies that no appeal will b e taken, it does not waive the rig ht to b r i n g a § 2255 motion unless it does so ex pressly .”); United States v

. Pruitt
, 32 F .3d 431, 433 (9th Cir. 1994) (“A plea ag reement d o e s n o t w aive the rig ht to bring a § 2255 motion unless it does so ex pressly .”).L E M K E V

. R Y A N 7

L emke’s plea ag reement does not ex pressly w a i ve his rig ht of collateral attack. His plea ag reement states:

[ T] he De fendant hereby waives and g ives up any and all motions, defenses, objections, o r requests which he has made o r raised, o r could assert h ereafter, to the c ourt’s entry o f judg ment ag ainst him and the imposition of a sente n ce u

pon him consistent with this
ag reement. B y entering this a g reement, the De f e ndant further waives and g ives up the rig ht to appeal.

This provision does not mention collateral a t t a ck, and its wording is most reasonably read as referrin g to post-trial activity in the trial court, an interpretation that is bolstered b y the addition of a separate sentence waiving L e mke’s r ig ht o f appeal. L e mke’s § 2254 petition is not such a contemplated

“ m o t ion[ ], defense[ ], objection[ ]
, or request[ ] .” I ndeed, the advice g iven by the trial judg e at the c hang e o f p l e a h e aring

m a kes clear that L emke was not waiving h is r ig ht o f collateral attack in the state c o u r t

. After informing L emke that he was waiving

his rig ht of appeal, the judg e stated:

Under the plea ag reement, y ou h a v e to file what is called a p etition f o r post-conviction relief where i f t h ere were a ny mistakes b y y our attorney s, by the S tate, by the Courts o r any other irreg ularity that r equires redress with the Courts, y o u have to file that petition in writing with the sentencing judg e within 90 day s of y our sentence or y ou mig ht lose that rig ht.L E M K E V

. R Y A N 8

I t seems apparent, therefore, that neither the p lea ag reement

n o r L emke’s likely understanding of it waived his rig ht t o bring this collateral action under § 2254.

The second waiver issue is whether L emke, b y his plea o r in the quoted portion of his plea a g reement, waived his claim of double jeopardy as a substantive matter. B ecause the state courts did not consider this issue, our review is de n ovo. See Scott v

. Schriro

, 567 F .3d 573, 5 84–85 (9th Cir. 2009) (noting that A EDPA d eference does not a pply when “there is no state court decision on this issue to w hich to accord d e f e r ence” (internal quotation marks and citation omitted)).

The g eneral rule is that “‘a voluntary and intellig e nt plea of g uilty made by a

n accused perso n , w h o has b een advised by competent counsel, may not be co l l a t e rally a ttacked.’” United States v. Broce
, 488 U.S. 563
, 574 (1989) (quoting Mabry v. J

ohnson

, 467 U.S. 504, 508 (1984)). This rule is predicated on the idea that a v alid g uilty plea “ removes the issue of factual g uilt from the case.” M e nna v. New Y

o rk

, 423 U.S. 61, 6 2 n.2 (1975). According ly

, L em ke’s g uilty pl ea to felony murder waived constitutional claims that became irrelevant upon reliable establishment of factual g u ilt by his plea. Id

.

An ex c eptio n to this g eneral r u le, however, is that a defenda n t’s “g uilty plea does n ot foreclose a subsequent challeng e where the defendant challeng es the rig ht not to be haled into court at all.” B roce , 488 U.S. at 574–75 (internal quotation marks omitted). L emke’s plea fits into this narrow

ex ce p t ion where he arg ues that the charg e to which he
p l e a d ed g uilty is one “which the State may n o t constitutionally prosecute,” id. at 575 (internal quotation

m arks and citation omitted), a nd where his claim does n o tL E M K E V

. R Y A N 9

rely o n evidence outside the “indictments and the ex istin g record,” id. a t 5 7 6

. I n arg u ing that his retrial for felony murder violated double jeopardy , L e mke does not challeng e his factual g uilt, but i n s t ead asserts that the State was constitutionally barred fro m p r osecuting him for felony murder. See United State s v

. Garcia-Valenzuela

, 232 F .3d 1003, 1006 (9th Cir. 2000) (“The Court in Menna drew a fundam e n tal distinction between post-plea constitutional challeng es that implicated th e factual g uilt of the defendant, and those that w e r e independent of factual g u ilt.”). Moreover, as previously mentioned, L emke relies only on the

ex isting record a

nd does not “s e ek f

urther proceeding s at which t o ex pand the record with new evidence.” Broce
, 488 U.S. at 575. W e may r e s o l v e L emke’s claim solely b y reviewing the face of the indictment, the g uilty plea, and the judg ments entered ag a inst L emk e “ w i thout any need to venture b ey ond [ the ex isting ] record.” I d

. Thus, L emke’s double jeopardy claim is not waived merely by his entry of a plea of g uilty

.

A more difficult i s s u e is whether L emke waived his double jeopardy defense e ntirely in t h e clause of the plea
ag reement in w hich L e mke waives “all motions, defenses, objections, or requests which he h as made or raised, or could
assert hereafter, to the court’s e ntry of judg ment ag ainst him.” Althoug h this lang uag e is broad, it does not refer specifically
to double jeopardy o r any other particular subject matter. And for reasons that we have ex p l a ined, the waiver appears to be limited to matters a r ising in the trial court apart from
any colla t e ra l attack. W e construe any ambig uity in a plea
ag reement ag ainst the drafter – here, the State

. See United States v. Transfigurac i o n , 442 F .3d 1222, 1228 (9th Cir. 20 0 6 )

. L emke’s claim of double jeopardy raised by this appeal thus may not fall within the “literal terms” of his pleaL E M K E V

. R Y A N 10

a gr e e m ent waiver. United States v. Leniear
, 574 F .3d 668
, 6 72 ( 9th Cir. 2009) (internal quotation marks and citati o n omitted).

I n arg uing that L emke’s d ouble jeopardy claim is waived, the partial d issent here relies o n Ricketts v. A d amson , 483 U.S. 1 ( 1987). I n that case, Adamson had entered a plea of g uilty to second-deg ree murder that required him to testify
ag ainst his co-conspirators. T h e ag reement provided that “[ s] hould the defendant refuse to testify

. . . then this entire
ag reement is null and void and the o rig inal charg e [ of firstdeg ree murder] will be automatically reinstated.” Id. at 4. I t further specified that “[ i] n the event that t h i s a g reement becomes null a n d void, then the parties shall be returned to the positions they

were in before this ag

reement.” I

d

. at 9.

Adamson testified and was sentenced for second-deg r ee murder pursuant to the ag reement. The convictions of his coconspirators were reversed on appeal, h o w ever, and A damson refused to testify ag ainst them at their retrial. The court then vacated his conviction and reinstated the first-deg ree murder charg e. Adamson was c o n victed and sentenced to death. The Supreme Court upheld the conviction, r ejecting Adam s o n ’s double jeopardy

claim. The Court stated:

The terms of the ag reement could not b e clearer : I n the event of respondent’s breach occasioned by a r e fusal to testify

, the parties would be returned to the stat us quo ante , in which case respondent would h ave no double jeopardy defense to waive. And, an agr e ement specify

ing that charg es may be reinstated g iven certa i n circumstances is, at least un der the provisions of this pleaL E M K E V

. R Y A N 11

a g re e m e n t , p recisely equivalent to an ag re ement w aiving a double jeopardy defense.

Id. at 10 (emphasis in orig inal).

Adamson certainly stands for the proposition that a double jeopardy defense can be waived, but it is sufficiently distin gu ishable so that it d oes not necessarily compel a conclusion that L emke has waived his double jeopardy c laim. Adamson’s waiver was specific to h is situation a n d spelled
out ex actly what would happen to him if he refused to testify

. L emke’s waiver was not similarly s p ecific, and his underly ing prior adjudication was not vacated b ec a u se o f a breach of a plea ag

r eement or for any

other reason.

W e a re not convinced, therefor e, that A damson o r any other authority supports a conclusion that L emke has waived his double jeopardy d efense. W e need no t r e s o lve this question definitively

, however, because we conclude, for the

reasons that f

ollow, that L emke’s double jeopardy claim f ails

on its merits to meet the requirement s o f § 2 254(d)(1). The contention that h e waived that c laim is not a jurisdictional issue, a nd there is no compelling reason why we cannot p r o c e ed to the merits of his a ppeal without conclusive l y resolving the waiver issue. See United States v. Jacobo Cast i l l o , 496 F .3d 947, 954–57 (9th Cir. 2007) ( en banc) (holdin g that a plea ag reement w aiver of appeal does not deprive appellate court of statutory jurisdiction).

B. Double Jeopardy

The D ouble J eopardy Clause p rovides that no person shall “be subject for the same offence to b e twice put in jeopardy of life or lim b

. ” U.S. Const. Amend. V. The claimL E M K E V

. R Y A N 12

preclusion aspect of t h e D o uble J eopardy Clause bars successive prosecutions f o r c harg e s that are, for double jeopardy p urposes, the same o ffense. United States v. Dixon
, 509 U.S. 688, 696–98 (1993). The issue preclusion

, o r collateral estoppel, aspect of double jeopardy “precludes the Government from reliti gating any issue that was necessarily decided by a jury ’s a cquittal in a prior trial.” Y eager v

. United States , 557 U.S. 110, 119 (2009).

The Ariz ona Court of A ppeals held that neither aspect o f double jeopardy barred L emke’s r etrial for felony murder. Lemke v. Rayes
, 14 1 P.3d 407, 416 (Ariz

. Ct. App. 2006). W e no w c o n sider whether that c o n clusion constituted an unreasonable application of clearly established Supreme Court precedent, and we hold that it did not.

1. Double Jeopardy Claim P reclusion

The Supreme Court has h e l d that the Double J eopardy Clause “protects ag a inst successive p rosecutions for the same offense a fter a cquittal or conviction.” M onge v. California

, 524 U .S. 721, 727–28 (1998). W e conclude that, under this formulation and others put forth b y t h e S u p r eme Court, the prosecution o f L emke for a rmed robbery felony murder a fter his impl i e d a cquittal of armed robbery was indeed prosecution for the “same offense.” Supre m e C ourt precedent, however, does not clearly establish that, u nder the circumstan ces of his case, the continued prosecution was “successive” and therefore prohibited.

a. The “Sam e Of

f ense” test

Two c harge s c o n stitute the “same offense” for double jeopardy purposes unless “each provision requires proof of aL E M K E V

. R Y A N 13

fact which the other does not.” Blockburger v. United States
, 284 U.S. 299, 304 (1932).

The State a dmits, and the Ariz ona Court of Appeals held,
t h a t armed robbery and felony murder predicated on ar m e d robbery are the “ same off e n s e ” under the Blockburger test because the felony murder i n c l udes all of the elements o f armed r obbery

. See, e.g. , H arris v. Oklahoma

, 433 U.S. 682, 682–83 (1977) (holding that, for double jeopardy p u r p oses, robbery wi t h a f

i rearm is the same offense as felony murder predicated on armed robbery ); W halen v. Unite d States
, 445 U.S. 684, 693–94 (1980) (noting that rape is a “ lesser included” offense of felony murder predicated on rape a nd is the same offense for double j eopardy purposes); United States

v. James
, 556 F .3d 1062, 1067 (9th Cir. 2009) (analy z ing an Ariz ona state conviction a nd accepting that robbery is a lesser included offense of felony murder). 1

The Ariz ona Court of A ppeals also ass u m ed that, b y convicting L e mke of theft and remaining si l e nt a s to the charg e of armed robbery

, the jury impliedly acquitted L emke of armed robbery

. S

ee Green v

. United States
, 355 U.S. 184, 190–91 (1957) (holding that when a jury convicts a defendant

on a lesser included charg e and remains silent as to t he
g reater inclusive charg e , it impliedly acquits the d efendant o f the g reater charg e); see also Brazzel v

. W ashington

, 491 F .3d 976, 981 (9th Cir. 2007) (“An implied acquittal occurs when

a jury returns a g uilty verdict as to a lesser included or lesser alternate charg e, b ut remains silent as to other c h a rg es,

1 Mo reo v er, b ecau se t

h ef t is a lesser in clu d ed o f

f en se o f ro b b ery , th ef

t

an d f elo n y m u rd er p red icated o n ro b b ery are also th e “ sam e of f en s e” f or d o u b le j eo p ard y

p u rp o ses.L E M K E V

. R Y A N 14

without announcing any sig ns of h o peless deadlock.”). 2 The Ariz ona Court of A ppeals was thus confronted with a

s i t u a tion in which the jury had convicted the defendant o f th e f t , impliedly acquitted him of armed robbery

, a nd deadlocked on felony murd e r , a n d all three of those charg e s constituted the “same offense” for double jeopardy purposes.

L emke arg ues that, o nce the Ariz ona Court of A p p ea l s reached this point in its analy sis, B lockburger compelled the
court to hold that double jeopardy b arred his r etrial for felony murder. H is arg ument is a t t r ac t ively simple. Under Blockburger

, the offenses f or w hich he w as convicted (theft)

a n d impliedly acquitted (armed robbery ) are the “same offense” as felony murder. According ly , the State could not place him twice in j e o pardy f or the “same offense” b y retry ing him on the felony

murder charg e.

The Ariz ona Court of Appeals, however, did no t f ollow the straig h tforward approach that L e mke a dv ocates. Citing Richardson v. United S

tates , 4 68 U.S. 3 1 7
, 3 2 5 (1984), the

c o u r t noted that the p rotections afforded by the Dou b l e J eopardy Claus e a p p ly only after orig inal jeopardy has terminated, a

nd jeopardy “continues” on counts for which the jury h as failed to rea c h a v e rdict. Lemke

, 141 P.3d at 414.

2 T h e trial co u rt’ s p ro v isio n o f a LeBla n c i n st r u c t io n , w h ich allo w ed j u ro rs to co n sid er th e lesser o f f en se if th ey co u ld n o t ag r e e a s t o t h e g reater o f f en se, lik ely d oes n ot un d e r m i n e th e co n clu sio n th at th e j u ry ’ s silen ce o n arm ed ro bb ery co n stitu t ed an im p lie d acq u ittal. S

ee Bra z zel

, 4 9 1 F. 3 d a t 9 79 (treatin g t h e situ atio n as an im

plied acq u ittal w

h ere th e j u ro rs lef t b lan k th e v erd ict f

orm f or t h e g reater o f

f en se an d co n

v icted on th e lesser o f

f en se, ev en th o u g h th e j u

ry i n stru ctio n s in clu d ed an “ u n ab le
to ag ree” in s tru ctio n an d p ro v id ed t h at t h e j u ro rs “ m

u st” f ill o u t t h e v erd i ct f o rm if th ey u n an im o u sly

ag reed an d w ere to leav e it b lan k if th ey co u ld

n o t ag ree).L E M K E V

. R Y A N 15

T h e A riz o na Court of Appeals therefore held that, although jeopardy had terminated as to the armed robbery count of the indictment, it had never termin a t e d as to the felony murder
count. I d. at 415. Thus, retrial for felony murder would not

ex p ose L emke to a successive prose cu tion or place him

“ twice in jeopardy .” Id.

b. “Successive” prosecution

W e cannot conclude that Supreme Court prece d e n t forecloses the result reached by th e Ariz ona Court o f Appeals

. Neither of the Supreme Court c ases that L emke principally relies upon conclusivel y addresses his situation. I n Green v

. U

nited States
, 355 U .S. 1 8 4 (1957), the defendant

was charg e d w ith arson a nd first deg ree murder by arson. The jury found him g uilty of a r s o n a nd second deg r ee murder. On a

ppeal, his second deg ree murder conviction was reversed and his case was remanded for r e t rial. On remand he was tried a

nd convicted o f first deg ree murder. The Supreme Court held that the first deg r e e m u rder conviction

was b arred by the Double J eopardy Cla u s e b e cause the first jury implicitly acquitted him of that charg e, and that jury h ad been di s m issed without Green’s consent, thus ending his jeopardy on that charg e. Id. at 190–91; accord

, Price v

. Ge o r g i a , 3 98 U.S. 323, 329 (1970). Green is c lose to L emke’s case, but differs in that L emke was not retried on the

same charg e o f whi c h the jury had implicitly acquitted him, and no event necessarily terminated his jeopardy on the hung

jury charg e of felony

murder predicated on armed robbery

.

I n Brown v. Ohio

, 432 U .S. 161 (1977), the defendant h ad b e e n convicted of joy

riding

. He was later indicted a n d convicted of auto theft arising from the same incident. The Supreme Court held that the second conviction was b arred b yL E M K E V

. R Y A N 16

the D ouble J eopardy Clause, but it is abundantly clear that the separate, second prosecution was “successive” within the meaning of the Double J eopardy Clause.

On the other hand, the Supreme Cou r t i n R ichardson v

. United S tates , 468 U.S. at 3 25, permitted retrial of charg es on which a j u ry had been unable to ag ree, despite the defendant ’ s arg ument that the evidence in his first trial h ad been insufficient to convict h im. I n rejecting that arg ument, the Court held that “the failure of the jury to reach a verdict is not an event which terminates jeopardy .” I d. A nd in Ohio

v. Johnson

, 467 U.S. 493 (1984), the Supreme Court held that the defendant’s plea of g

uilty to lesser included offenses did
not foreclose an ensuing tri al on the g reater offense, noting that the defendant’s “efforts were directed to separate disposition of counts in the same indictme nt where no more th a n one trial o f the offenses charg ed was ever contemplated.” Id. at 5 02. F inally

, in Blueford v. A rkansas

, 132 S. Ct. 2044, 2050–51 (2012), the S u p r e me Court permitted retrial of capital charg es after a jury was unable to reach a verdict, even thoug h the jury h ad reported itself a s unanimously a g ainst c onviction on the capital ch arg e; no verdict had actually

been entered.

Althoug h none o f these cases perfectly matches L emke’s
case, a nd althoug h Gre en is perhaps the closest c ase to L e mke’s, the mix of these Supreme Court cases doe s n o t leave us with an i m p r e ssion that law clearly established b y the Supre m e C o urt p recluded L emke’s being subjected to retrial for felony murder – a charg e o f which he had not been acquitted ex plicitly or implicitly

. W e have not been directed to any Supreme Court decision that forecloses as a matter of claim preclusion the r etrial, in the same litig ation, of a charg eL E M K E V

. R Y A N 17

upon wh ich the record shows that the jury was unable to come to a verdict.

Althoug h the clearly established federal law r equi red b y § 2254(d)(1) must be f

ound in Supreme Court, not circ u i t court, decisions, we may ex a mine our o wn precedent to see whether we a

re bo u n d b y o ne of our decisions that “has already held that the particular point in issue is c l e a rly established by Su p re m e Court p recedent.” Marshall v

. Rodgers

, 133 S. Ct. 1446, 1450 (2013). Such an ex amination leads to somewhat contradictory results in this case.

W ilson v. Czerniak

, 355 F .3d 1151 (9th Cir. 200 4), provides strong support for L emke ’ s p osition. There, the petitioner had been indicted on a variety o f charg es, including
ag g r avated f

elony murder predicated on kid n apping

, intentional murder, a

n d kidnapping

. Id. at 1152. F e lony murder and intentional murder were charge d i n separate counts. Id. at 1152. The jury convicted t he petitioner o f kidnapping

, acquitted him of intentional murder, and hung on the ag g ravated felony murder c harg e s. Id. W e h eld that the petitioner could n o t b e retried f o r felony murder because he had been acquitted of i n tentional murder, which, under Blockburger

, was the “same offense” as felony murder. I n so holding

, we noted that “[ w ] e ll-settled Supreme Court precedent provides tha t a c riminal d efendant may not be

r e t r i e d for a crime following an acquittal or conviction on a le sser included or g reater inclusive offense.” Id. at 1154. Even thou gh jeopardy had not terminated as to the hung felony murder count, it had terminated as to the int e n t i o nal murder count, and intention a l murder was a lesser included offense of f

e lony murder. Id. at 1155. According ly

, “ a retrial for ag g ravated felony murder would subject Wilson twice to jeopardy for the same o ffense.” Id. at 1156. Moreover, weL E M K E V

. R Y A N 18

distingu i shed Richardson on the g round that it involved

“ s e p arate and unrelated offenses and raised no Blockburg e r issue.” Id. at 1155. F inally

, we held that the state court had unreasonably applied Supreme Court precedent in re aching the contrary conclusion. Id. at 1156–57.

W ilson p resents a very close factual situation to this c ase, but it is not p r e c i s ely on point. Unlike the petitioner in W ilson

, L emke was acquitted of a lesser-included charg e (armed robbery

) o n l y by implication arising from his conviction of a sub-lesser-included charg e (theft). Yet this distinc tion is not really material for claim preclusion
purposes; double jeop ar d y m ay be shown by either a prior acquittal or a p ri o r conviction o f the same offense. Id. at 1154. Moreover, all parties have accepted f o r purposes o f decision that L emke’s implied a cqui t t al for armed robbery

was effective, a

nd that the State c ould not retry h im f or armed robbery

.
Thus, w ere we faced o n l y w ith the applicable Supreme Court precedent and our interpretation of that precedent in W ilson

, we would likely consider ourselves bound by circuit law to c o n clude that clearly established federal law a s determined by the Supreme Court barred L emke’s retrial for felony murder. B ut other cases decided by our c ircuit before and after W

ilson present insurmountable obstacles in the way of such a conclusion.

I n Forsberg v. Un i ted States
, 351 F .2d 242 (9th Cir. 1965), decided well before W ilson

, the jury hung on a lesser included o ffense and acquitted on a g reater inclusive offense charg ed in the same indictment. Rely ing on the fact that the
two charg es were broug ht in the same indictment, we h eld that the termination of jeopardy as to the g reater inclusiveL E M K E V

. R Y A N 19

offense did not bar retrial as to the l e s s er included offense. Id. at 248.

A y e ar after our decision i n W i lson

, and larg ely contradictory to it, we decided United States v. Jose
, 425 F .3d 1237 (9th Cir. 2005). There, the defendants were initially convicted of felony murder a nd lesser included robb e r y a n d burg lary c harg es, b ut their felony murder convicti o ns were reversed o n ap p e al. Id. a t 1239–40. Rely ing heavily on Forsberg and without mentioning W ilson

, we held that “final

co n victions o n the underly ing predicate felonies do not trig g er double jeopardy protections ag ainst re t r i a l of the
g reater offense orig inally charg ed u nder the same indictment in the same t r i a l

. ” I

d. at 1248 (emphasis in o rig inal). W e noted that “‘there is a difference between separate, successive trials of g reater and lesser offenses, and the different situation in which both are tried tog ether.’” Id. at 1 242 (quoting United States v. DeVincent
, 632 F .2d 1 55, 158 (1st Cir. 1980)). We concluded that, “[ i] n such a s i t u a t i o n, the
g overnment is not barred from r etry ing the defendant, notwithstanding that jeopardy has te r m i nated on the r elated offense. And this is true even t h oug h the g reater and lesser offenses are the ‘sam e o ffense’ for purposes of double jeopardy .” Id. at 1 2 4 3

– 4 4 (internal citations omitted). W e rejected the d efe n d a n ts’ reliance on Green
, noting that “[ t] heir theory would have made it impossible for the district
court to retry Green on the c ha rg e of second deg ree murder

ev en thoug h this was the charg e that formed the basis of his reversed conviction.” Id. at 1245 (footnote omi t t e d ). 3

3 T h is o b serv atio n reg ard in g Green is p ro blem atical in lig h t o f Green ’ s

u n u su al p ro ced u ral p o stu

re. Green h ad ob tain ed rev ersal o f h is s e c o n dd eg ree m u rd er co n v ictio n o n t

h e g ro u n d th at th e j u ry s h o u ld n o t h av e b een in stru cted o n seco n d

- d eg ree m

u rd er, so th at it w as p o ssib le th at, w ith o u tL E M K E V

. R Y A N 20

According ly

, w e held that retrial did not v i olate double jeopardy

. 4

I t is almost impossible to reconcile W ilson and Jo s e and

s a tisfy our quest for binding circuit authority on wh e t h e r L em k e’s subjection to retrial for felony murder violated clearly established federal law as determined by the Supreme Court. The conflict between W ilson a nd Jo s e i s sufficiently

severe that, if we were dealing with a d irect appeal, we would probably sug g est en banc review to determine which case provide s the circuit law to g overn the appeal of the double jeopardy c laim. This is not a direct a ppeal, however, a

nd our ultimate task is to determine whether Supreme C ourt precedent c learly e stablishes federal law in L e mke’s favo r. All we can say in the face of W ils o n a n d J

o s e is that our circuit law provides no bin ding answer on that point. B ecause our direct ex amination o f Supreme Court p recedent

th e in stru ctio n , h e w o u ld h av e b een acq u itted o f m u rd er en tirely

. T h e

co u rt o f ap p eals ag reed th at th e ev id en ce p o i n t e d “ to m u rd er in t h e f irst d eg ree an d n o th in g else,” a n d th at th e s eco n d

- d eg ree m u rd er in stru ctio n h ad b een “ at least tech n ically erro n eo u s.” Green v. Un i t e d Sta tes , 2 1 8 F.2 d 8 5 6
, 8 5 9 (D.C. Cir. 19 5 5 ). It seem s lik ely

, t h eref o re, th at Green

co u ld n ot h av e been retried f o r seco n d

- deg ree m

u rd er o n r e m a nd

. Ou r la r g e r p o in t in Jo se , h ow ev er, w as th at o rd i n arily a d ef en d an t w h o

su cceed s in o v ertu rn in g a co n v ictio n o n ap peal can b e retried

. See Un ited S ta tes v. Ta teo , 3 7 7 U.S. 4 6 3
, 4 6 5 n .1 (1 9 6 4 ) (“ [ Green ] h o ld s o n ly th at

w h en o n e is co n v icted o f a lesser o f f en se in clu d ed in

th at ch arg ed in th e

o rig in al in dictm en t, h e can b e retried o n ly f o r th e o f f en se o f w h ich h e w as

co n v icted rath er t h a n th at w ith w h ich h e w as o rig in ally ch arg ed .”). Mo reo v er, ev en if Jo se m isin terp reted G reen , its d ecisio n rem ain s as th e p o ten tial law

o f th e circu it reg ard i n g Green ’ s ef f ect.

4 T h e A rizo n a Co u rt o f A

p p eals cited Jo se in su

p p o rt its co n clu sio n th at j eo p ard y co n tin

u ed o n L em

k e’ s f elo n y m u rd er ch arg e ev en af

ter i t term in ated o n

th e ro b b ery

ch arg e. L emke , 1 4 1 P .3 d at 4 1 5

.L E M K E V

. R Y A N 21

reveals no clearly e stablished law precluding L emke’s retrial for felony murder, w e reject h is dou ble jeopardy claim preclusion arg

ument.

Case law from our sister circuits that conflicts with W ilson also buttresses ou r conclusion that L emke’s double jeopardy claim is not founded on clearly e stablished Supreme Court law. See Carey v. Musladin

, 549 U.S. 70, 76 (2006) (noting that diverg ent treatment of an issue amon g circuit
courts “reflect[ ed] the lack of g uidance” from t h e Supreme Court); M

er as v. Sisto
, 676 F .3d 1184, 1190 (9th Cir. 2 012) (noting that ex tensive disag reement among lower courts may sug g est that a state court d id not u n re asonably apply clearly established feder a l law). Several decisions f rom other circuits sug g est that double jeopardy does not necessarily bar retrial on a hung count a f ter jeopardy h as t e r minated on a lesser included or g r eater inclusive offense c ha r ge d i n the

same indictment. See, e.g. , U nited Stat e s v. J

ackson

, 658 F .3d 1 45, 151–53 (2d Cir. 2011) (finding no d o u ble jeopardy violation where defendant had been c onvicted o f lesser included offense and retried on d e adlocked g reater offense, but sug g esting that c oll a teral estoppel mig ht have barred retrial had defendant been acquitted, rather t h an convicted, o f lesser o ffense); Delgado v. Fla. Dep’t of Corrections
, 659 F .3d 1311, 1330 ( 11th Cir. 2 0 1 1 ) (citing Jose with approval and noting that jeopardy can continue on

one charg e even after it termin ates o n a lesser or g reater offense c harg ed in the same indictment); United S t a t e s v

. Howe
, 538 F .3d 820, 827 (8th Cir. 2008) (holding that, when

a jury acquits a defendant of a g reater offense and deadlocks

as to a lesser offense, “jeopardy continues as t o t h e lesser offense, notwithstanding the defendant’s acquittal o n the
g reater o ffense”), a broga ted on other grounds by Y eager v

. U nited States
, 557 U .S. 1 10 (2009). These cases cast do u b tL E M K E V

. R Y A N 22

on the p r o p osition that Supreme Court precedent clearly establishes that double jeopardy bars retrial on a deadlocked
count o nce jeopardy has terminated on a nother c ount in t he indictment that constitutes the “same offense.”

W e conclude, therefore, that L e mke has failed to meet the requirement of 28 U.S.C. § 2254(d)(1) that the decision of the Ariz ona Court of Appeals rejecting double jeopardy claim preclusio n “ w a s contrary to, or involved an unreasonable application of, clearly established F ederal law, as determined by the Supreme Court of the United States.”

2. Collateral Estoppel

W e also conclude that the Ariz o n a Court of Appeals did
not unreasonably apply clearly esta b l i s h ed federal law in holding that collateral estoppel did not bar L emke’s retrial for felony murder. Collateral estoppel woul d a p p l y if L emke’s retrial for felony murder would involve “relitig ating any issue that was n ecessarily decided by a jury ’ s acquit t a l in a prior trial.” Y eager , 557 U.S. at 119. I n deciding whether an issue

was “necessarily decided” by t he jury

, the court must “ex a mine the record of a prior proceeding

, taking into
account the pleading s, evid e n ce , charg e, and o ther relevant matter, and concl u de whether a rational jury c ould have
g rounded its v e r dict upon an issue other than that which the defendant seeks to foreclose fr o m consideration.” A she v

. Swenson
, 397 U.S. 4 36, 444 ( 1970) (internal quotation marks and footnote omitted).

The A riz ona Court of Appeals reasonably concluded that Pet i t i o n er could not carry his burden of demonstrating that the jury “necessarily dec i d ed” that he had not committed armed robbery

. The court noted that “ [ t] he LeBlancL E M K E V

. R Y A N 23

instruction prevents us from knowing whether the ju r y unanimously acquitted defendant of a r med robbery o r simply could not ag ree.” Lemke

, 141 P.3d a t 416. Alt h o u gh t h e j u ry ’s silence on armed robbery constituted an imp l i e d
acq u i t t a l of that charg e for the purposes of the claim preclusion aspect of double jeopardy

, it does not h ave an issue p reclusive effect unless the record indicates that the jury necessarily decided the issue in L emke’s favor. S ee Schiro v

. Farley

, 510 U .S. 222, 236 (1994) ( “W e have in some circumstances considered jury s i lence as tantamount to an acquittal for double jeopardy purposes. Green v. United States
, 355 U.S. 1 8 4, 190-191

. . . ; Price v. Georgia
, 3 9 8 U.S., at 329, 9 0 S. Ct., at 1761. The failure to r e t u rn a verdict d oes not have collateral estoppel effect, however, unless the record est a b l i shes that the issue was actually a nd necessarily decided in the defendan t 's favor.”); see also United States v. Carothers

, 630 F .3d 959, 964–65 (9th Cir. 2011) (holding that the trial court’s im p r oper mistrial on simple possession barred retrial for that charg e under double jeopardy but carried no issue-preclusive effect with respect to retrial f or a g reater inclusive c harg e ). Her e, the record did
not establish that the jury had necessarily decided that L emke did not commit armed robbery

.

CONCLUSION

The judg ment of the district court is

AF F IRMED.L E M K E V

. R Y A N 24

B URNS, District J udg e, concurring in part and d issenting in part:

I ag r ee that the decision of the Ariz ona Court o f Appeals rejecting L emke’s double jeopardy claim was not contrary to,

or an unreasonable application of, c learly established F ederal law. I don’t ag r ee, thoug h, that L emke still had a d o u ble jeopardy claim left after h e pled g uilty to f elony murder. L emke sig ned a plea ag reement in which he barg a ined away his r ig ht to p ursue “ any and a ll motions, defenses, o bjections

or requests which he [had] made or raised, or c o u l d assert hereafter, to the court’s entry of judg ment ag ainst him.” B ut after he g ot what he b a r gained for — namely

, a favorable
sentence — he reneg ed on his prom i s e t o d rop his defenses and appeals. W e shouldn’t let him g et away with such perfidy

.

The panel majority holds as a threshold matter that under Menna v. New Y

ork

, 423 U .S. 61, 62 ( 1975), a double jeopardy claim is not impliedly waived by a defendant’s open g uilty plea, provided the defendant i s n o t challeng ing his factual g ui l t and his claim can be resolved without considering evidence outside the record. Majority opinion at 8–9. I ag ree with tha t

. T h e m ajority also seems willing to accept that a double jeopardy claim not preserved by Menna

can be e x pressly waived b y a ple a a gr eement. I ag ree with that too. B ut the majority thinks that the co m p r e hensive waiver lan guag e in L emke’s plea ag reement does not cover his failed double jeopardy cl a i m , which was the mainspring of his defense before he dec i d e d to plead g uilty to felony murder. That’s where I

disag r ee.

After the jury convicted L emke of theft, but hung on the f elony murder count, Ariz o na soug h t to retry him f or fel o n yL E M K E V

. R Y A N 25

murder. L emke objected, raising his double jeopardy defense in a moti o n with the state trial court. The trial judg e denied the mot i o n

. L emke nex t raised the d efense in a petition for special action — basically

, a n interlocutory appeal — with the Ariz ona Court of Appe a l s

. T hat court also rejected it. L emke then soug ht to raise the defense in t h e A riz o na Supreme Court, which refused to hear his claim.

Having ex hausted his double jeopardy defense in the state courts, L emke faced g oing to tr i a l a ga in and, if convicted, pursuing his ar guments on direct appeal or on collateral review in the federal c o urts. He instead opted to make a deal with the State. I n ex chang e for a parole elig ible sentence that would r un concurr e n t l y with the sentence he was already serving for theft, L emke promised to plead g uilty to f e l ony murder, end his leg al challeng es, and serve his time. The state kept its word; L emke was sentenced to concurrent time on the felony murder charg e, and was declared elig ible for eventual parole. That should have ended the matter, but then he filed a habeas corpus petition with our court.

The majority g ets off on the wrong foot by misconstruing the p lain lang uag e of L e mke’s plea ag reement, t h en compounds its misstep by ig noring the contex t in which the
ag reement was entered into. The waiver lang uag e “is broad,” the majority concedes, but they still find it insufficient because it doesn’t specifically mention “double jeopardy ” o r any other particular subject matter. I t doe s n’t have to. The
two requirements for a valid w aiver ar e that it must be “voluntary in the sense that it was th e p r o d u c t of a free a nd deliberate choice,” w hich is not in issue here, and “made with

a full awareness of both the n a ture of the rig ht being abandoned and the consequences of the decision to abandon i t .” Moran v. Burbine

, 475 U .S. 4 12, 421 (1986). Yes, t h eL E M K E V

. R Y A N 26

Ninth Circuit requires an ex press waiver of c ollateral attack. United States v. Benboe

, 1 57 F .3d 1 181, 1183 (9th Cir. 1 998); U nited States v. Pruitt
, 32 F .3d 431, 433 (9th Cir. 1 99 4 ). And, y es, the lang uag e must e ncompass what is actu ally being waived. United States v. Leniear
, 574 F .3d 6 68
, 6 7 2 (9th Cir. 2009). B ut under any fair unders t a n d i n g o f lang uag e, L emke’s plea ag reement meets those requirements. His sweeping c ommitment to g ive u p “any and all” defenses “he has made o r raised” surely encompasses the double jeopardy defense — the o nly defense that he had raised a t all levels in the Ariz ona courts. And his c ateg orical pledg e that his waiver would ex tend to any “ m o t i ons, defenses, objections, or requests” that he “could assert hereafte r ” j u s t

as surely covers a c o llateral attack. I n spite of the majority ’s parsing

, the lang ua ge isn’t ambig u ous, superfluous, o r redundant. I t convey s L emke’s all-inclusive promise to stop defending ag ainst the charg e. N o a mount of parsing can chang e that. 1

The case that should g u ide our determination of whether L emke’s waiver was ex press enoug h is Ricketts v. A d amson , 483 U.S. 1, 8–9 (1987). I n A damson

, a defendant who p led

1 T h e m aj o rity say s a § 2 2 5 4 p etitio n isn ’ t a “m o t i o n [ ]
, d e f en se[ ],

o b j ectio n [ ], or r e q u e s t [ ].” Maj o rity o p in io n at 7

. Ma yb e t h at’ s rig h t, alth o u g h o u r circu it h as at least casu ally ref er r ed to § 2 2 5 4 h ab eas p etitio n s as “ m otio n s .” S

ee, e.g

. , Lee v. La m

p ert , 6 5 3 F.3 d 9 29
, 9 35 n .1 0 (9 th Cir. 2 0 11 ) (en b an c); Bo yd v. Newla nd

, 4 6 7 F .3 d 1 1 3 9
, 1 1 4 5 n .4 (9 th Cir. 2 0 06 ). T h is m isses th e p oin t, th o u g h

. Ev en assu m in g Le m k e’ s § 2 2 5 4 p etitio n isn ’ t a “ m o tio n ,” th e d o ub l e j eo p ard y claim d riv in g th e p etiti o n i s certain ly a “ d ef en se” o r “ o b

j ectio n ” to th e en t

ry o f j u dg m en t ag ain st h i m , j u st as i t’ s o n e th at L em k e h ad “ m ad e o r raised ” at th e tim e h e s ig n ed th e p lea ag reem en t an d th at h e “ co u ld assert h ereaf ter.” B ecau s e t h e r e i s n o am

b ig u ity h ere, th e ben ef

it o f th e do u

b t p rin cip le th at w ou ld h av e u s co n stru e th e p l e a a gr e e m en t in h i s f av o r d o esn ’ t ap ply

. S

ee Un ited S ta tes v. Tra n s

fig u ra cio n , 4 4 2 F.3 d 1 2 2 2, 1 2 2 8 (9 th Cir. 2 0 0 6 ).L E M K E V

. R Y A N 27

g uilty to a lesser charg e under a plea ag reement went b ack on his word aft e r h e received the benefit h e barg ained for. I n respons e to the defendant’s breach, the state reinstated the orig inal charg es and tried and c onvicted him. Our circuit on habeas review

, like the majority here, held that the defendant’s plea ag reement didn’t w aive his double jeopardy claim b ecause it didn’t ex plicitly mention the w ords “double jeopardy .” Adamson v. Ricketts

, 789 F .2d 722, 728 (9th Cir. 1986) ( e n b anc). B ut the Supreme Court dismissively rebuffed that cramped view

, say ing “we d o not f ind it sig nificant, as d id the Court of Appeals, tha t ‘ d o u ble jeopardy ’ w as not specifically w a i v e d by name in the plea
ag reement.” 483 U.S. at 9. The point was, a ccording to the Court, that more g eneral lang uag e c o uld be “ precisely the equivalent to an agreement waiving the double jeopardy defense.” Id

. at 10. So it is here, where L emke’s commitment
to “waive any and all defenses” s u b s u m es the particular defense h e raises a

nd is therefore precisely equival e n t to a lesser promise to “waive the defense of a double jeopardy .”

The majority sug g ests that statements m ade by the Ariz ona trial judg e during the chang e of plea colloquy show that L e mke retained the rig h t to bring a federal h abeas corpus petition. I don’t see how. T he judg e correctly informed L emke that, as part of his plea ag reement, he had waived any rig ht to appeal. B ut b ecause Ariz ona, und er its state constitution, permits a defendant to file a “petition f o r p ost

co n viction relief” in every criminal case, the judg e went on to inform hi m o f t hat. This rig h t, k nown as “ a Rule 32 ofrig ht proceeding ,” see State v. W ard , 211 Ariz

. 158, 161–62 (2005), is peculiar to Ariz ona a nd has nothing to d o with federal habeas corpus. The judg e made tha t c l ear by telling L emke that his petition had to be fil e d with “the sentencing judg e.” L emke eventually f iled a Rule 32 petition, but it wasL E M K E V

. R Y A N 28

summarily denied because the sentencing j u d ge found that
every issue L emke rai sed, including d ouble jeopardy

, “was either r aisable on direct appeal or has been waived at trial o r

o n a ppeal.” See Lemke v. Ryan
, Case No. CR 9-CV- 1 0 5 9 (D. Ariz )

, Doc. No. 15-7 (J une 5, 2008). And, indeed, L emke can’t challeng e that r u l i n g in this c ourt because a Rule 32 petition is strictl y a state remedy that does not implicate federa l h a beas corpus jurisdiction. See Hunt v. Vasquez
, 899 F .2d 878, 8 80 ( 9th Cir. 1990) (habeas corpus insures that

a federal forum is available to v indicate a viol at i o n o f a f e d eral rig ht; there is n o federal rig h t to any p articular stat e law reg ime).

L emke g ot what he barg a ined for, and I see no reason to let him out o f his o blig ati o n s under the plea ag r eement. “[ T] he D ouble J eopardy Clause, whic h g uards ag ainst Government oppression, does not r e l i e v e a defendant from the consequences of his v oluntary choice.” Un ited States v

. Scott
, 437 U.S. 82, 99 (1978). I f the sta t e m a y , as in A d a m s on , prosecute a defendant on the orig inal charg es following his breach of a plea ag reement, then it should also be permitted to hold h im to the p l e a a g reement in the first place. L emke knew he had to abandon his double jeo p a r d y defense in order to wrang le sentencing c oncessions from the State. He made a calculated and voluntary choice to waive it, and we should treat his choice n o differently from the way the Supreme Court treated the choice made by the d e f e n d ant in Adamson

.

B y failing to e n force L e mke’s e x press waiver, w e r isk undermining the integ rity of the plea barg aining p r o c ess. “Plea barg ains are an i m p o r t a n t — indeed an essential

— component o f our criminal justice sy stem; they provide vast benefits to the g overnment, to our courts, to the public and toL E M K E V

. R Y A N 29

c r iminal d efendants.” United States v. Gonzalez

, 981 F .2 d 1037, 1040 (9th Cir. 1992) (Koz ins ki, dissenting ). Parties barg a in with the ex pectation that the barg ains they reach will be e n fo rced. According ly

, our circuit has g enerally treated ple a ag reements as binding c ontracts, United S tates v

. G o n z a les-Melchor

, 648 F .3d 959, 963 (9th Cir. 2011) (“W e

c o nstrue a plea ag reement as a contract betwe e n a g overnment and a defendant”), and absent g ood reason not to we respect and enforce the barg ains the parties make.

Here the State barg a ined for a g uilty plea to a m u r der charg e, and o ffered L emke a reduced sentence in ex chang e

. B ut it also barg ained for finality — that if the judg e accepted and followed the plea a g reement, the c harg e would stick a nd L emke’s murder conviction would be final. O u r circuit has de s c r i bed finality as “ p erhaps the most important benefit o f plea barg aining .” United States v. Navarro-Botello

, 912 F .2d 318, 322 (9th Cir. 1990). Ex cept apparently in this case. I n my view, it’s simply unfair to let L emke flout h is o blig ations under the p lea ag reement, d eprive the State of the benefit o f its barg ain, a

nd put us to the task of r econsidering leg al issues in a case that should have b e e n f i n al. See U

nited States v

. Pratt
, 657 F .2d 218, 220 (8th Cir. 1981) (defendant “pleaded
g uilty

, p resumably

, because he preferred the certainty of a

max imum of ten y ears to the r i s k of conviction a nd punishment on each o f six counts

. . . . [ W ] e think it would be unfair

. . . t o consider now the double-jeopardy claim urg ed by defendant.”).

A deal’s a deal, and we should enforce this one.