Lemke v. Ryan, 11–15960.

• Citation: 719 F.3d 1093
• Decision Date: 19 June 2013
• Docket Number: No. 11–15960.,11–15960.
• Parties: Robert D. LEMKE, Petitioner–Appellant, v. Charles L. RYAN and Attorney General of the State of Arizona, Respondents–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

719 F.3d 1093

Robert D. LEMKE, Petitioner–Appellant,

v.Charles L. RYAN and Attorney General of the State of Arizona, Respondents–Appellees.

No. 11–15960.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2013.

Filed June 19, 2013.

Golnoosh Farzaneh (argued), Assistant Federal Public Defender, and Keith J. Hilzendeger, Research & Writing Specialist, Federal Public Defenders' Office, Phoenix, AZ, for Petitioner–Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General; Kent E. Cattani, Division Chief Counsel; Joseph T. Maziarz, Section Chief Counsel, Phoenix, AZ, for Respondents–Appellees.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 2:09–cv–01059–DGC.

Before: WILLIAM C. CANBY, JR. and N. RANDY SMITH, Circuit Judges, and LARRY A. BURNS, District Judge.^*

OPINION

CANBY, Senior Circuit Judge:

Petitioner Robert D. Lemke appeals the district court's denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Lemke contends that subjecting him to retrial for felony murder violated the Double Jeopardy Clause because a jury earlier had impliedly acquitted him of the robbery underlying the felony murder charge. We conclude that the Arizona Court of Appeals' holding that double jeopardy did not bar Lemke's retrial was not “contrary to, or ... 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). Accordingly, we affirm.

BACKGROUND

In August 2002, Charles Chance was robbed and shot once in the chest. He died at the scene. Petitioner was then indicted in Arizona state court on three counts stemming from that incident: (1) felony murder predicated on armed robbery; (2) armed robbery; and (3) conspiracy to commit armed robbery.

At trial, the court instructed the jury that the armed robbery charge in Count II included the lesser offense of theft and, similarly, that the charge of conspiracy to commit armed robbery in Count III included the lesser charge of conspiracy to commit theft. In accordance with Arizona 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 agree on the greater charged offense. State v. LeBlanc, 186 Ariz. 437, 924 P.2d 441, 442 (1996). The jury was not instructed on any lesser included offense for Count I, felony murder.

After seven days of deliberation, the jury returned guilty verdicts on the lesser included offenses of theft and conspiracy to commit theft. The jury left blank the verdict forms for armed robbery and conspiracy to commit armed robbery. As to felony murder predicated on armed robbery, the jury reported that it could not reach a verdict. The court declared a mistrial on the felony murder count and sentenced Lemke to a total of twenty-seven years' imprisonment for the theft and conspiracy convictions.

The State then sought retrial on the felony murder count. Lemke moved for dismissal, arguing that double jeopardy barred his retrial for felony murder predicated on armed robbery. The trial court denied Lemke's motion, the Arizona Court of Appeals rejected Lemke's double jeopardy claim in a reasoned decision, and the Arizona Supreme Court denied review. Thereafter, Lemke pleaded guilty to felony murder in exchange for a concurrent life sentence with the possibility of parole after 25 years.

Lemke then filed a pro se 28 U.S.C. § 2254 petition in federal district court, reasserting his argument that the Double Jeopardy Clause barred his retrial for felony murder. The district court denied the petition and declined to issue a certificate of appealability. Lemke appealed, and this court granted a certificate of appealability and appointed counsel.

DISCUSSION

We review de novo the district court's denial of a habeas petition. Ferrizz v. Giurbino, 432 F.3d 990, 992 (9th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we may grant Lemke's petition for habeas relief only if the decision of the Arizona Court of Appeals “was contrary to federal law then clearly established in the holdings of [the Supreme] Court; or ... involved an unreasonable application of such law.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (internal quotation marks and citations omitted). Because the Arizona Supreme Court denied review in a summary order, we look through that order to the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

A. Waiver

As an initial matter, we address two issues of waiver. The first is whether Lemke's express waiver of appeal in his plea agreement also waived his right to bring this petition for collateral relief. The government does not argue that Lemke's express waiver of appeal waived his right to bring a collateral attack under 28 U.S.C. § 2254, but the partial dissent here does. Our circuit precedent makes clear, however, that a waiver of collateral attack must be express, and that a plain waiver of appeal does not suffice. See United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir.1998) (“We have held that even where a plea agreement specifies that no appeal will be taken, it does not waive the right to bring a § 2255 motion unless it does so expressly.”); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (“A plea agreement does not waive the right to bring a § 2255 motion unless it does so expressly.”).

Lemke's plea agreement does not expressly waive his right of collateral attack. His plea agreement states:

[T]he Defendant hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and the imposition of a sentence upon him consistent with this agreement. By entering this agreement, the Defendant further waives and gives up the right to appeal.

This provision does not mention collateral attack, and its wording is most reasonably read as referring to post-trial activity in the trial court, an interpretation that is bolstered by the addition of a separate sentence waiving Lemke's right of appeal.

Lemke's § 2254 petition is not such a contemplated “motion[ ], defense[ ], objection[ ], or request[ ].” Indeed, the advice given by the trial judge at the change of plea hearing makes clear that Lemke was not waiving his right of collateral attack in the state court. After informing Lemke that he was waiving his right of appeal, the judge stated:

Under the plea agreement, you have to file what is called a petition for post-conviction relief where if there were any mistakes by your attorneys, by the State, by the Courts or any other irregularity that requires redress with the Courts, you have to file that petition in writing with the sentencing judge within 90 days of your sentence or you might lose that right.

It seems apparent, therefore, that neither the plea agreement nor Lemke's likely understanding of it waived his right to bring this collateral action under § 2254.

The second waiver issue is whether Lemke, by his plea or in the quoted portion of his plea agreement, waived his claim of double jeopardy as a substantive matter. Because the state courts did not consider this issue, our review is de novo. See Scott v. Schriro, 567 F.3d 573, 584–85 (9th Cir.2009) (noting that AEDPA deference does not apply when “there is no state court decision on this issue to which to accord deference” (internal quotation marks and citation omitted)).

The general rule is that “ ‘a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.’ ” United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). This rule is predicated on the idea that a valid guilty plea “removes the issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Accordingly, Lemke's guilty plea to felony murder waived constitutional claims that became irrelevant upon reliable establishment of factual guilt by his plea. Id.

An exception to this general rule, however, is that a defendant's “guilty plea does not foreclose a subsequent challenge where the defendant challenges the right not to be haled into court at all.” Broce, 488 U.S. at 574–75, 109 S.Ct. 757 (internal quotation marks omitted). Lemke's plea fits into this narrow exception where he argues that the charge to which he pleaded guilty is one “which the State may not constitutionally prosecute,” id. at 575, 109 S.Ct. 757 (internal quotation marks and citation omitted), and where his claim does not rely on evidence outside the “indictments and the existing record,” id. at 576, 109 S.Ct. 757. In arguing that his retrial for felony murder violated double jeopardy, Lemke does not challenge his factual guilt, but instead asserts that the State was constitutionally barred from prosecuting him for felony murder. See United States v. Garcia–Valenzuela, 232 F.3d 1003, 1006 (9th Cir.2000) (“The Court in Menna drew a fundamental distinction between post-plea constitutional challenges that implicated the factual guilt of the defendant, and those that were independent of factual guilt.”). Moreover, as previously mentioned, Lemke relies only on the existing record and does not “seek further proceedings at which to expand the record with new evidence.” Broce, 488 U.S. at 575, 109 S.Ct. 757. We may resolve Lemke's claim solely by reviewing the face of the indictment, the guilty plea, and the judgments entered against Lemke “without any need to venture beyond [the existing] record.” Id. Thus, Lemke's double jeopardy claim is not waived merely by...