* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

February 10, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT WAYNE LAMBERT,

Petitioner-Appellant,

v.

RANDALL WORKMAN, Warden,

Respondent-Appellee.

No. 09-5108

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 4:00-CV-00313-TCK-FHM)

Submitted on the briefs:*

Mark Henricksen and Lanita Henricksen, Henricksen & Henricksen, Oklahoma

City, Oklahoma, for Petitioner-Appellant.

Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY,

Senior Circuit Judge.

ANDERSON, Circuit Judge.

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1 The habeas proceeding was stayed for a lengthy period of time, during

which Lambert secured a reduction of his death sentences to life without parole

by demonstrating mental retardation under Atkins v. Virginia, 536 U.S. 304

(2002). See Lambert v. State, 126 P.3d 646, 650, 659 (Okla. Crim. App. 2005). 

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Petitioner Robert Wayne Lambert was tried and convicted in Oklahoma

twice for the first-degree murders of Laura Lee Sanders and Michael Houghton.

The Oklahoma Court of Criminal Appeals (OCCA) rejected numerous objections

to affirm his second convictions and associated death sentences. Lambert v.

State, 984 P.2d 221 (Okla. Crim. App. 1999). He then sought habeas relief on

many of the same grounds in the federal district court, which denied his petition

in a thorough opinion. Lambert v. Workman, ___ F. Supp. 2d ___, 2009 WL

1941971 (N.D. Okla. July 2, 2009).1

 Lambert filed a notice of appeal and now

asks this court to issue a certificate of appealability (COA) limited to the claim

that his second trial for, and resultant conviction of, felony murder violated the

constitutional prohibition on double jeopardy. We deem this claim “adequate to

deserve encouragement to proceed further,” and therefore grant COA to afford it

“full consideration” on appeal. Miller-El v. Cockrell, 537 U.S. 322, 336, 338

(2003). Upon full review, however, we affirm the district court’s decision to

deny relief for the reasons explained below. 

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I

Lambert’s initial murder conviction, on a general verdict encompassing

both malice-aforethought and felony murder, was reversed on appeal because he

had been charged solely with malice-aforethought murder and had conducted his

defense accordingly, to his demonstrable prejudice. Lambert v. State, 888 P.2d

494, 503-05 (Okla. Crim. App. 1994). The OCCA remanded for a new murder

trial, with the express understanding that the State could re-file the charging

information to add felony murder. Id. at 505. At the same time, the OCCA

affirmed Lambert’s associated felony convictions, including the armed robbery

that served as the predicate for felony murder in the first trial. Id. 

On remand, the State elected to charge both forms of first-degree murder.

Lambert was retried and again found guilty under a general verdict. He argued

that double jeopardy should have barred his trial on the felony-murder charges,

citing the established rule that a final judgment of conviction on a lesser-included

offense (here, the predicate felony affirmed on Lambert’s first appeal) precludes

subsequent prosecution for a greater offense (the felony-murder charges), see

Brown v. Ohio, 432 U.S. 161, 168-69 (1977). The OCCA rejected this argument,

citing the equally established principle of “continuing jeopardy,” see Justices of

Boston Mun. Court v. Lydon, 466 U.S. 294, 308 (1984), which sanctions retrial on

charges (here, for felony murder) after a prior conviction thereon has been

reversed for trial error. Lambert, 984 P.2d at 227-29. The OCCA affirmed the

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2 Because the general murder verdict made it impossible to tell whether

Lambert’s convictions were for felony murder or malice-aforethought murder, the

OCCA treated them as based on the former for purposes of assessing and

remedying any double-jeopardy claims, Lambert, 984 P.2d at 227. See generally

Griffin v. United States, 502 U.S. 46, 53 (1991) (“[W]here a provision of the

Constitution forbids conviction on a particular ground, the constitutional

guarantee is violated by a general verdict that may have rested on that ground.”).

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murder convictions and, to obviate concerns about multiple punishment following

conjoint conviction of greater and lesser-included offenses, see Rutledge v. United

States, 517 U.S. 292, 307 (1996), vacated the predicate felony conviction.2

Lambert, 984 P.2d at 229, 238. 

On habeas review, the district court concluded that Lambert “ha[d] not

demonstrated that the OCCA’s rejection of his double jeopardy challenge was

contrary to [or] an unreasonable application of Supreme Court precedent.”

Lambert, 2009 WL 1941971, at *12. Thus, under the deferential standard of

review in 28 U.S.C. § 2254(d), the state court’s adjudication was not subject to

federal interference. Lambert, 2009 WL 1941971 at *12. We agree with this

assessment. 

II

As our summary of Lambert’s appeal before the OCCA reflects, this case

involves the intersection of two distinct and potentially opposing principles. On

the one hand, a defendant cannot be prosecuted for a greater offense following his

conviction for a lesser-included offense. Thus, leaving aside the unified character

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of the prosecution here, Lambert’s conviction on the predicate felony charge,

affirmed by the OCCA on his first direct appeal, would have precluded his

subsequent prosecution for felony murder. On the other hand, the State may retry

a defendant who remains in “continuing jeopardy” after his conviction has been

reversed on appeal for trial error. Thus, leaving aside Lambert’s affirmed

conviction on the lesser-included felony charge, the State could have retried him

following the reversal of his initial murder convictions. This case essentially

requires a choice between the two principles: did Lambert’s lesser-included

felony conviction preclude the felony-murder retrial otherwise permitted by the

continuing-jeopardy principle, or did Lambert’s continuing jeopardy on the

felony-murder charge override the prohibition on successive prosecution of

greater and lesser-included offenses? 

This habeas proceeding is governed by the deferential review standards set

out in § 2254(d), which, when factual determinations are not at issue or in

dispute, turn conclusively on the presence or absence of Supreme Court precedent

clearly establishing the legal right on which the petitioner’s claim is premised. 

As we recently summarized:

Our review of a petition for writ of habeas corpus is governed

by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). If the state court adjudicated the claim on the merits, a

petitioner is entitled to habeas relief only if he can establish that the

decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1) . . . .

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In ascertaining whether the law is clearly established, we

review Supreme Court holdings extant when the state court

conviction became final. . . . Federal courts may no longer extract

clearly established law from the general legal principles developed in

factually distinct contexts. Finally, whether the law is clearly

established is dispositive of the § 2254(d)(1) analysis. Specifically,

only if we determine that the law is clearly established do we inquire

whether the state court decision is either contrary to or an

unreasonable application of that law. 

Fairchild v. Workman, 579 F.3d 1134, 1139 (10th Cir. 2009) (emphasis added)

(case citations and quotations omitted). 

Lambert has not cited, nor have we found, any Supreme Court authority

clearly establishing the proper reconciliation of the competing double-jeopardy

principles at issue here. Under the AEDPA standards set out above, that is fatal

to his claim. Unless and until the Supreme Court decides that retrial following

the reversal of a conviction is barred when a lesser-included offense conviction is

simultaneously affirmed, habeas relief on this basis is unavailable, and it is not

the province of this court to resolve the issue here. But, just to buttress our

dispositive holding that Lambert’s claim was not clearly established, we note that

the Ninth Circuit rejected precisely the same claim in a recent direct criminal

appeal. After an extensive analysis that acknowledged the lack of controlling

Supreme Court precedent and looked to relevant circuit authority, the court held

that the continuing-jeopardy principle permitted retrial on felony-murder charges

despite the concomitant affirmance of the underlying felony convictions. See

United States v. Jose, 425 F.3d 1237, 1239-48 (9th Cir. 2005). 

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III

Lambert advances another, related argument in support of his

double-jeopardy claim. He contends that, after affirming his murder convictions

on his second direct appeal, the OCCA acted improperly by curing the resultant

multiple-punishment problem (joint conviction of greater and lesser-included

offenses) by sua sponte directing the dismissal of the predicate felony conviction

affirmed on his first appeal. He insists that the only curative action left to the

OCCA at that point was to reverse his felony-murder convictions instead. This

argument fails as well. 

After reversing Lambert’s murder conviction on his first appeal, the OCCA

indicated that, should the State successfully retry him for felony murder, the trial

court was to abrogate any lesser-included felony conviction. Lambert, 888 P.2d

at 505. The trial court failed to do this, and the OCCA simply corrected the error

on Lambert’s ensuing appeal. Lambert, 994 P.2d at 229. We fail to see how this

constitutes a “violation of the Constitution or laws or treaties of the United

States” subject to redress under § 2254(a). The basic curative procedure followed

by the OCCA, vacating the lesser of two multiplicious convictions left standing

by the trial court, is standard practice in double-jeopardy jurisprudence. See, e.g.,

United States v. Hernandez, 94 F.3d 606, 612 (10th Cir. 1996); United States v.

Morehead, 959 F.2d 1489, 1507 (10th Cir. 1992). The OCCA did the same thing

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3 We have recognized this point, explicitly or implicitly, in a number of

unpublished decisions. See, e.g., Elston v. Roberts, 232 F. App’x 824, 826-27

(10th Cir. 2007); Shaffner v. Boone, 3 F. App’x 675, 688 (10th Cir. 2001);

Anderson v. Champion, No. 96-7110, 1997 WL 383187 at *2 (10th Cir. July 11,

1997). For a contrasting example of a state jurisdictional question turning on

federal rather than state law, and therefore properly addressed on habeas, see

Negonsott v. Samuels, 933 F.2d 818, 819 (10th Cir. 1991) (addressing challenge

to state jurisdiction pursuant to federal grant of criminal authority over Indian

lands in the Kansas Act, 18 U.S.C. § 3243), aff’d, 507 U.S. 99 (1993). 

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when it affirmed the murder conviction of Lambert’s co-defendant. See Hain v.

State, 852 P.2d 744, 752 (Okla. Crim. App. 1993). 

Lambert argues that the OCCA lacked jurisdiction to abrogate the felony

conviction because it had been affirmed on his first appeal. The OCCA rejected

this argument, explaining that it had “specifically retained jurisdiction over the

underlying felony” in connection with its earlier remand. Lambert, 984 P.2d

at 229. The OCCA’s understanding of its own authority in the state appellate

process is a matter of state law and, as such, generally beyond the purview of

federal habeas review.3 See Wright v. Angelone, 151 F.3d 151, 157-58 (4th Cir.

1998) (holding state court determination of jurisdiction under state law is binding

on federal habeas court); Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994) (same).

See generally Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (discussing general

limitation on federal habeas review of state law determinations). While the

“Supreme Court has suggested that, in rare circumstances, a determination of state

law can be ‘so arbitrary or capricious as to constitute an independent due

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process . . . violation,’” Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir.

2007) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)), cert. denied,

128 S. Ct. 2943 (2008)), that is not the case here. Having expressly preserved the

trial court’s authority to vacate the affirmed felony conviction if constitutionally

required on remand, it was neither arbitrary nor capricious for the OCCA to retain

and exercise its customary appellate authority to correct the trial court’s error in

the event the trial court failed to take the required action. 

Appellant’s limited request for a certificate of appealability is GRANTED

and the judgment of the district court is AFFIRMED. 

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