## Facts

- Robert D. Lemke, an Arizona prisoner, was indicted for felony murder predicated on armed robbery, armed robbery, and conspiracy to commit armed robbery after the victim was robbed and fatally shot.
- The trial court instructed that armed robbery included the lesser offense of theft, and conspiracy to commit armed robbery included conspiracy to commit theft.
- The court gave a step-down instruction (LeBlanc instruction) permitting jurors to consider lesser included offenses if, after reasonable effort, they could not agree on the greater offense.
- No lesser-included-offense instruction was given for the felony-murder count.
- After lengthy deliberations, the jury convicted Lemke of theft and conspiracy to commit theft, left the verdict forms for armed robbery and conspiracy to commit armed robbery blank, and reported it could not reach a verdict on felony murder.
- The trial court declared a mistrial on felony murder and sentenced Lemke to 27 years on the theft-related convictions.
- The State sought to retry Lemke on felony murder; Lemke argued retrial was barred by double jeopardy because the jury’s actions impliedly acquitted him of robbery-based offenses.
- Arizona courts rejected the double jeopardy claim; Lemke later pleaded guilty to felony murder for a concurrent life sentence with parole eligibility after 25 years.
- Lemke filed a federal habeas petition under 28 U.S.C. § 2254 asserting the felony-murder reprosecution violated the Double Jeopardy Clause; the district court denied relief, and the Ninth Circuit granted a certificate of appealability.

## Issues

1. Whether the state court’s rejection of Lemke’s double-jeopardy/implied-acquittal theory was contrary to, or an unreasonable application of, clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1).
2. Whether convictions on lesser-included theft offenses, combined with blank verdict forms on the greater robbery offenses and a hung jury on felony murder, constituted an implied acquittal barring retrial for felony murder predicated on armed robbery.

## Decision

- The Ninth Circuit affirmed the denial of habeas relief.
- Applying AEDPA deference and reviewing the last reasoned state decision, the court held the Arizona Court of Appeals reasonably concluded that double jeopardy did not bar retrial on felony murder.
- The court accepted as reasonable the view that, given the step-down instruction, the jury’s lesser-offense convictions and silence on the greater robbery counts did not necessarily reflect a final acquittal on the greater offenses.
- Because Supreme Court precedent did not clearly require treating the jury’s actions as an implied acquittal in these circumstances, § 2254(d)(1) foreclosed relief.

## Legal Principles

- Under AEDPA, federal habeas relief may be granted only if the state court decision is contrary to, or an unreasonable application of, clearly established Supreme Court holdings.  
- Federal courts assess the last reasoned state-court decision when higher state courts issue summary denials.
- Double jeopardy bars reprosecution after an acquittal, including an implied acquittal, but a genuine jury deadlock permits a mistrial and generally allows retrial.
- When jury instructions permit consideration of lesser included offenses upon inability to agree on the greater offense, a verdict on the lesser and no verdict on the greater can reasonably be viewed as nonresolution of the greater charge rather than an acquittal.

## Conclusion

The Ninth Circuit held that, under AEDPA, the state court reasonably determined that the jury’s lesser-theft convictions and lack of verdicts on robbery-based counts—given the step-down instruction and the hung felony-murder count—did not amount to an implied acquittal, so retrial and the resulting felony-murder conviction were not barred by double jeopardy.


Lemke v. Ryan, 719 F.3d 1093 (9th Cir. 2013)