Anderson v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 25 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DARRON B. ANDERSON, a/k/a
Damon Anderson,

Petitioner - Appellant,

v. No. 01-5181

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. No. 98-CV-374-H)

Darron B. Anderson, pro se.

Michael A. Rollin (Timothy M. Hurley, with him on the briefs), Denver,
Colorado, appearing for Petitioner-Appellant.

Kellye G. Bates, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, with her on the brief), Office of the Attorney General, Oklahoma City,
Oklahoma, appearing for Respondent-Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON, and O’BRIEN, Circuit
Judges.

TACHA, Chief Circuit Judge.
 Petitioner Darron B. Anderson appeals the district court’s denial of his

habeas petition filed pursuant to 28 U.S.C. § 2254. We exercise jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253 and AFFIRM.

I. B ACKGROUND

In the early morning hours of January 4, 1993, three men kidnapped,

robbed, assaulted, and repeatedly raped and sodomized Penny Sue Stuckey. An

Oklahoma jury subsequently convicted petitioner Darron B. Anderson of

kidnapping, multiple counts of first degree rape and forcible sodomy, first degree

burglary, 1 robbery by fear, and grand larceny.

On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)

reversed and remanded on all counts. While it reversed most of the counts for

instructional error, the OCCA reversed the first degree burglary conviction for

insufficient evidence. The court expressly found, however, that the evidence

presented to the jury was insufficient only as to the element distinguishing first

degree burglary from the lesser included offense of second degree burglary: i.e.,

the requirement that the dwelling house be occupied at the time of the breaking

1
At this trial petitioner was not indicted for, nor was the jury instructed
on, the lesser included offense of second degree burglary.

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and entering. 2 Specifically, the court stated:

Appellants contend the evidence was insufficient to sustain
convictions for First Degree Burglary as the State failed to prove all
of the elements of the offense, specifically that the dwelling house
was occupied at the time of the breaking and entering. Under the
language of 21 O.S. 1991, § 1431, the breaking and entering must
occur when there is a person within the dwelling house. In the
present case, Appellants forced the victim to open a window, crawl
inside the house and then let them inside the house. At the time of
the victim’s entry, the house was empty. Her presence in the house,
by virtue of merely crawling in the window first, does not satisfy the
requirements of first degree burglary.

....

The evidence clearly showed that Appellants broke into the victim’s
home, thereby satisfying the elements for the lesser included offense
of 2nd degree Burglary.

Anderson v. State , No. F-93-826, slip op. at 3-4 & n.1 (Okla. Crim. App. October

12, 1995) (citing O KLA . S TAT . A NN . tit. 21, § 1435 and McArthur v. State, 862

P.2d 482, 485 (Okla. Cr. App. 1993)).

Oklahoma law authorizes the OCCA to reverse, affirm, or modify the

appellant’s judgment and sentence. O KLA . S TAT . A NN . tit. 22, § 1066. Here,

having found the evidence insufficient to support conviction on the greater

offense but sufficient to support conviction for the lesser included offense,

section 1066 authorized the OCCA to reverse petitioner’s conviction for first

2
Compare O KLA . S TAT . A NN . tit. 21, § 1431 (first degree burglary) with
O KLA . S TAT . A NN . tit. 21, § 1435 (second degree burglary).

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degree burglary and impose a conviction for the lesser included offense of second

degree burglary. McArthur , 862 P.2d at 485 (construing O KLA . S TAT . A NN . tit.

22, § 1066). Thus, while the OCCA could have imposed a conviction for second

degree burglary, it instead remanded the modified burglary charge to the Tulsa

County District Court along with the rest of the remanded charges, effectively

granting petitioner a second chance at acquittal. 3

At petitioner’s second trial, the Tulsa County District Court judge amended

the burglary charge from first degree burglary to the lesser included offense of

second degree burglary. Before the trial court, petitioner argued that prosecution

for second degree burglary would violate the Double Jeopardy Clause of the U.S.

Constitution. The trial court rejected petitioner’s contention. The second trial,

like the first, resulted in petitioner’s conviction on all counts, including second

degree burglary.

Petitioner pursued a second direct appeal to the OCCA. With the exception

of petitioner’s conviction for grand larceny, which the OCCA vacated, the

appellate court affirmed as to all counts.

On May 4, 1998, Anderson filed a pro se petition for habeas relief in the

United States District Court for the Eastern District of Oklahoma, pursuant to 28

3
In fact, one of the judges on the OCCA panel voted to impose a
conviction for second degree burglary under section 1066. Anderson, No. F-93-
826, slip op. at 4 (Lumpkin, J., concurring in part, dissenting in part).

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U.S.C. § 2254. The cause was then transferred to the Northern District of

Oklahoma. In his petition, Anderson reasserted his argument that, following the

reversal of his conviction for first degree burglary for insufficient evidence, the

Double Jeopardy Clause barred prosecution on the lesser included offense of

second degree burglary. The district court denied his petition, and petitioner

sought a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1). The

district court denied petitioner’s request, and this appeal followed.

In an order dated August 7, 2002, finding that petitioner had made a

substantial showing of the denial of a constitutional right, see Slack v. McDaniel ,

529 U.S. 473, 483-84 (2000), we appointed petitioner counsel and granted a COA

on the following three questions:

(1) May a state appellate court, upon concluding there is evidence
insufficient to support a conviction on a greater offense, remand to
the trial court for retrial on a lesser included offense?

(2) If so, is such a procedure permissible only where the defendant was
indicted and the jury instructed on the lesser included offense?

(3) Are there other conditions that should affect the availability of such a
procedure? 4

4
In briefing these questions, we directed the parties to address, at a
minimum, the following three cases: Brown v. Ohio, 432 U.S. 161 (1977),
Beverly v. Jones, 854 F.2d 412 (11th Cir. 1988), and Shute v. Texas, 117 F.3d 233
(5th Cir. 1997).

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 II. D ISCUSSION

A. Standard of Review

“In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo.” Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however,

“circumscribes a federal habeas court’s review of a state-court decision.”

Lockyer v. Andrade , __ U.S. __, 123 S. Ct. 1166, 1172 (2003). Ultimately, “our

review of the state court’s proceedings is quite limited,” Rogers , 173 F.3d at

1282, as section 2254(d) sets forth a “highly deferential standard for evaluating

state-court rulings,” Lindh v. Murphy , 521 U.S. 320, 333 n.7 (1997).

B. Overview of the AEDPA

Under the AEDPA, we must deny habeas relief unless the state appellate

court’s 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); Andrade , 123 S. Ct. at 1172; LaFevers v.

Gibson , 182 F.3d 705, 711 (10th Cir. 1999). The Supreme Court clarified this

standard in Williams v. Taylor :

Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable

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 facts. Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.

529 U.S. 362, 412-13 (2000).

Under the “unreasonable application” clause, the Court in Williams stressed

that the relevant inquiry is not whether the state court’s application of federal law

was incorrect , but whether it was “objectively unreasonable.” Id. at 409. Thus,

we may not grant habeas relief merely because we disagree with the state court’s

application of double jeopardy principles. Id. at 411. Nor do we reason from

constitutional first principles; rather, our inquiry is tightly constrained by the

AEDPA’s requirement that there be clearly established federal law on point, an

inquiry that begins and ends with “‘the holdings, as opposed to the dicta, of [the

Supreme Court’s] decisions as of the time of the relevant state-court decision.’”

Andrade , 123 S. Ct. at 1172 (quoting Williams , 529 U.S. at 412).

C. Was the OCCA’s Adjudication Contrary to, or an Objectively

Unreasonable Application of, Clearly Established Supreme Court

Precedent?

Petitioner argues that his prosecution for second degree burglary violated

clearly established federal law, reasoning as follows: (1) second degree burglary

is a lesser included offense of first degree burglary, and the two therefore

constitute the “same offense” for double jeopardy purposes; (2) the OCCA

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reversed his conviction for first degree burglary for insufficient evidence; (3)

appellate reversal for insufficient evidence is the functional equivalent of an

acquittal; and (4) an acquittal terminates the original jeopardy and invokes the

double jeopardy bar on successive prosecutions. Although petitioner points to

Supreme Court holdings that, at least arguably, support every link in this chain,

we disagree with his conclusion.

To determine whether the OCCA’s decision was contrary to, or an

unreasonable application of, clearly established Supreme Court precedent, we

must first determine precisely what the Court has held in this regard. We must,

therefore, consult the Supreme Court’s holdings as to the protections offered by

the Double Jeopardy Clause and the double jeopardy effects of a reversal for

insufficient evidence. We consider each issue in turn.

1. Protections Under the Double Jeopardy Clause

a. General overview

The Double Jeopardy Clause protects defendants against (1) “a second

prosecution for the same offense after acquittal,” (2) “a second prosecution for

the same offense after conviction,” and (3) “multiple punishments for the same

offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part

by Alabama v. Smith, 490 U.S. 794 (1989). Before the clause is implicated,

however, some event, such as an acquittal, must terminate the original jeopardy.

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Richardson v. United States , 468 U.S. 317, 325 (1984).

b. Greater and lesser included offenses are generally the

“same offense” for double jeopardy purposes.

In Blockburger v. United States , in the context of unrelated criminal

offenses, the Court articulated the following general rule:

The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one is
whether each provision requires proof of an additional fact which the
other does not.

284 U.S. 299, 304 (1932). Subsequent cases make clear that, where the

protections of the Double Jeopardy Clause have attached, prosecution for a

greater offense generally bars prosecution for a lesser included offense. United

States v. Dixon , 509 U.S. 688, 706-07 (1993).

The Oklahoma courts have held that second degree burglary, O KLA . S TAT .

A NN . tit. 21, § 1435, is a lesser included offense of first degree burglary, O KLA .

S TAT . A NN . tit. 21, § 1431. In other words, under Oklahoma’s construction of

these two provisions, “[t]he prosecutor who has established [second degree

burglary] need only prove [that the dwelling house was occupied at the time of

the breaking and entering] in order to establish [first degree burglary]; the

prosecutor who has established [first degree burglary] necessarily has established

[second degree burglary] as well.” Brown v. Ohio , 432 U.S. 161, 167-68 (1977) .

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Thus, “conviction of [the] greater crime, [first degree burglary], cannot be had

without conviction of the lesser crime, [second degree burglary].” Harris v.

Oklahoma , 433 U.S. 682, 683 (1977). Accordingly, applying Blockburger , first

and second degree burglary under Oklahoma law constitute “‘the same statutory

offense’ within the meaning of the Double Jeopardy Clause.” Brown , 432 U.S. at

168.

2. The Effect of Appellate Reversal for Insufficient Evidence:

Ball , Burks , and Greene

The narrow issue before us, then, is this: whether Oklahoma’s act of

prosecuting petitioner for the lesser included offense of second degree burglary,

following reversal of petitioner’s first degree burglary conviction based solely

and expressly upon a finding of insufficient evidence as to the element

distinguishing first and second degree burglary, was contrary to, or involved an

unreasonable application of, clearly established Supreme Court precedent under

the Double Jeopardy Clause. 5
We conclude that it did not.

We note, at the outset, that our inquiry is not satisfied by the definitive-

sounding pronouncement in Brown , in which the Court stated: “Whatever the

5
We consider this question in light of both the OCCA’s express finding
that the evidence presented to the jury satisfied the requirements for the lesser
offense and its statutory authority to impose a conviction on the lesser offense
without further process.

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sequence may be, the Fifth Amendment forbids successive prosecution and

cumulative punishment for a greater and lesser included offense.” 432 U.S. at

169 . Prior to making this pronouncement, the Court explicitly noted “[w]e are not

concerned here with the double jeopardy questions that may arise when a

defendant is retried on the same charge . . . after a conviction is reversed on

appeal.” Id. at 165 n.5. Thus, the Court in Brown removed from the table

precisely the issue before us, and its broad statement does not control the result in

this case.

In United States v. Ball , the Supreme Court declared the general rule, still

applicable today, that the Double Jeopardy Clause does not bar retrial of a

criminal defendant who successfully appeals his sentence. 163 U.S. 662, 672

(1896). As the Court itself has acknowledged, however, its double jeopardy cases

in the century following Ball “can hardly be characterized as models of

consistency and clarity.” Burks v. United States , 437 U.S. 1, 9 (1978).

In Burks , the Court reaffirmed the general rule set forth in Ball , but

overruled many of its prior cases to clarify the distinction between the double

jeopardy effects of appellate reversal for insufficient evidence and appellate

reversal for trial error . 6 Carving out a narrow exception to the general rule

6
“[R]eversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that the government has
(continued...)

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established in Ball , the Court held that “the Double Jeopardy Clause precludes a

second trial once the reviewing court has found the evidence legally insufficient.”

Burks , 437 U.S. at 18. The Court has subsequently reemphasized the limited

scope of the Burks exception. Tibbs v. Florida , 457 U.S. 31, 40 (1982) (“[ Burks ]

. . . carved a narrow exception from the understanding that a defendant who

successfully appeals a conviction is subject to retrial.”) (emphasis added).

Finally, in Greene v. Massey, a companion case decided the same day as

Burks , the Court applied the Burks exception to a state criminal court proceeding .

437 U.S. 19, 24 (1978). Significantly, however, the Court expressly declined to

reach the question of whether the Burks exception barred a subsequent

prosecution for a lesser included offense:

Given our decision to remand this case for reconsideration by the
Court of Appeals, we need not reach the question of whether the
State could, consistent with the Double Jeopardy Clause, try [a
defendant] for a lesser included offense in the event that his

6
(...continued)
failed to prove its case. . . . Rather, it is a determination that a defendant has
been convicted through a judicial process which is defective in some fundamental
respect.” Burks, 437 U.S. at 15. In Tibbs v. Florida, the Court further
distinguished reversals where the reviewing court concludes that the jury’s verdict
was against the great weight of the evidence. 457 U.S. 31, 42 (1982) (“[W]hen a
reversal rests upon the ground that the prosecution has failed to produce sufficient
evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from
making a second attempt at conviction . . ., [but the] policies [underlying this
rule] do not have the same force when a judge disagrees with a jury’s resolution
of conflicting evidence and concludes that a guilty verdict is against the weight of
the evidence.”).

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 [conviction for the greater offense] is voided [based on insufficiency
of the evidence].

Greene, 437 U.S. at 25 n.7.

We proceed to consider petitioner’s argument in light of these precedents.

3. The OCCA’s Decision Was Not “Contrary to” Clearly

Established Supreme Court Precedent.

The Court’s express reservation in Greene disposes of petitioner’s

argument under the “contrary to” clause of section 2254(d)(1). Because the Court

declined to consider whether a State could, consistent with the Double Jeopardy

Clause, prosecute a defendant for a lesser included offense in the event that his

conviction for a greater offense was reversed based on insufficiency of the

evidence, Greene, 437 U.S. at 25 n.7, we cannot say that the OCCA’s decision

was “contrary to . . . clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1). “If no Supreme

Court precedent is dispositive of a petitioner’s claim, then, a fortiori, there is no

specific rule to which the state court’s decision can be ‘contrary.’” Vieux v. Pepe ,

184 F.3d 59, 63 (1st Cir. 1999) (emphasis in original) (internal quotation marks

and citation omitted).

4. The OCCA’s Decision Was Not an “Unreasonable

Application” of Clearly Established Supreme Court Precedent.

Under the “unreasonable application” clause, we may not grant petitioner

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relief unless the OCCA’s decision was “objectively unreasonable” under clearly

established Supreme Court precedent. Andrade , 123 S.Ct. at 1174 (citation

omitted). Further, we must accord the OCCA’s decision proper deference, and

avoid “conflating error (even clear error) with unreasonableness.” Id. at 1175.

With these strictures in mind, we consider the OCCA’s actions in light of Ball ,

Burks , and Greene .

As discussed earlier, under the general rule set forth in Ball , the Double

Jeopardy Clause does not bar retrial of a criminal defendant who successfully

appeals his conviction. In Burks , however, the Court carved out a narrow

exception to this rule. Under Burks , the Double Jeopardy Clause bars the state

from reprosecuting a defendant after a reviewing court has reversed the

defendant’s conviction based on a finding that the evidence was legally

insufficient. 437 U.S. at 18. Significantly, as expressly recognized in Greene ,

Burks did not consider whether, under the Double Jeopardy Clause, the state may

prosecute a defendant for a lesser included offense in the event that his conviction

for a greater offense is reversed for insufficient evidence. Greene, 437 U.S. at 25

n.7. Further, the Court has subsequently stressed the narrowness of the Burks

exception. Tibbs , 457 U.S. at 40-41.

Two closely related policies support the narrow exception articulated in

Burks . First, because a reversal for insufficient evidence “means that the

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government’s case was so lacking that it should not have even been submitted to

the jury,” the Court considered it to be the functional equivalent of an acquittal.

Burks , 437 U.S. at 16 (emphasis added). Thus, “the rule barring retrial [is]

confined to cases where the prosecution’s failure is clear,” such that “no rational

factfinder could have voted to convict the defendant.” Tibbs , 457 U.S. at 41

(internal quotation marks and citation omitted).

Second, “‘[t]he Double Jeopardy Clause forbids a second trial for the

purpose of affording the prosecution another opportunity to supply evidence

which it failed to muster in the first proceeding.’” Id. (quoting Burks , 437 U.S. at

11). In other words, after “the government has failed to prove its case,” it should

not be afforded “a ‘second bite at the apple.’” Burks , 437 U.S. at 15, 17.

The instant case implicates neither of these policies. First, the appellate

court did not conclude that “the government’s case was so lacking that it should

not have even been submitted to the jury.” Id. at 16. Rather, the OCCA limited

its finding of insufficient evidence to the element distinguishing first and second

degree burglary, i.e., the requirement that the breaking and entering occur while

the dwelling is occupied. See O KLA . S TAT . A NN . tit. 21, § 1431. The OCCA then

expressly found that “[t]he evidence clearly showed that Appellants broke into the

victim’s home, thereby satisfying the lesser included offense of 2nd degree

burglary.” Anderson , No. F-93-826, slip op. at 4 n.1. The record amply supports

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this conclusion. Thus, the first prong of the Burks rationale, as clarified in Tibbs ,

is not implicated by the facts of this case. The OCCA’s reversal “implie[d]

nothing with respect to the [defendant’s] guilt or innocence” of second degree

burglary, since the OCCA limited its finding of insufficient evidence to the

element distinguishing first and second degree burglary. See Burks , 437 U.S. at

15.

The second prong of the Burks rationale is equally inapplicable. The

OCCA expressly found that the evidence at the first trial was sufficient to impose

a conviction for second degree burglary. Thus, there was no danger that a trial

for second degree burglary would afford the government an opportunity to

“supply evidence which it failed to muster in the first proceeding.” Tibbs , 457

U.S. at 41. Significantly, because the OCCA concluded that the evidence was

sufficient to support a conviction for second degree burglary, it was authorized by

statute to impose a sentence for that crime. See O KLA . S TAT . A NN . tit. 22, §

1066. 7 Thus, the OCCA’s decision to remand the second degree burglary charge

7
Petitioner does not challenge the OCCA’s power under section 1066; and,
as the OCCA did not impose a conviction under section 1066, the question is not
before us. We note, however, that numerous courts have upheld an appellate
court’s entry of judgment on a lesser included offense after a reversal for
insufficient evidence for the greater offense. For example, the Third Circuit has
held: “When the evidence is insufficient to support the greater offense, but
sufficient to support a conviction on the lesser-included offense, an appellate
court may vacate the sentence and remand for entry of judgment of conviction and
(continued...)

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was an unadulterated benefit to petitioner. By remanding the charges in toto ,

rather than imposing a conviction for second degree burglary and remanding the

rest of the charges, the OCCA “simply afford[ed] [petitioner] a second

opportunity to seek a favorable judgment.” Tibbs , 457 U.S. at 43. As in Tibbs ,

“[the] appellate court’s decision to give the defendant this second chance [did]

not create ‘an unacceptably high risk that the Government, with its superior

resources, [would] wear down [the] defendant’ and obtain conviction solely

through its persistence.” Id.

Finally, we note that two circuit courts have addressed the “gap” left by the

Supreme Court’s express reservation in Greene , regarding the double jeopardy

implications of prosecution for a lesser included offense following appellate

reversal for insufficient evidence of the greater offense. Both courts held that the

Double Jeopardy Clause does not bar prosecution for the lesser included offense.

In Beverly v. Jones , 854 F.2d 412 (11th Cir. 1988), the defendant was

convicted of intentional killing during the course of a robbery. On direct appeal,

the Alabama Court of Criminal Appeals reversed based on the “‘total lack of

proof of all the essential elements of common law robbery.’” Id. at 413. The

(...continued)
7

resentencing under the lesser-included offense.” Gov’t of Virgin Islands v.
Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981) (citing cases); see also United States
v. Skipper, 74 F.3d 608, 611-12 (5th Cir. 1996); Dickenson v. Israel, 644 F.2d
308, 309 (7th Cir. 1981).

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state then reindicted the defendant and secured a conviction for the lesser

included offense of first degree murder. The defendant filed a habeas petition

raising double jeopardy arguments similar to those advanced by petitioner in the

instant case.

Relying on Burks , the defendant argued that appellate reversal of the

greater offense for insufficient evidence constituted an acquittal on the greater

and all lesser included offenses . Beverly , 854 F.2d at 415. The Eleventh Circuit

disagreed. Relying on Tibbs , the court concluded that the policies underlying the

Burks exception did not apply where the appellate court’s “reversal of [the

defendant’s] conviction . . . did not constitute a decision that the State failed to

prove beyond a reasonable doubt the lesser included offense.” Beverly , 854 F.2d

at 415. The court also noted that the defendant “was not subjected to the threat of

any greater punishment than he would have received had the Alabama Court of

Criminal Appeals rendered judgment on the lesser included offense of murder and

remanded the case to the trial court for resentencing,” which it was authorized to

do. Id.

In Shute v. Texas , the Fifth Circuit followed the Eleventh Circuit’s

reasoning in Beverly and held that, where a state appellate court is authorized to

impose a conviction for a lesser included offense, it also has the power to remand

for retrial on the lesser included offense. 117 F.3d 233, 238-39 (5th Cir. 1997).

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According to the Shute court, “The state had no obligation to grant [the

defendant] an opportunity to obtain an acquittal for a crime of which he had

already been convicted. [The defendant] cannot complain now of this act of

judicial grace.” Id. at 239.

While we agree, in large part, with the reasoning of both courts, we hesitate

to flatly equate the power to impose a conviction for the lesser offense with the

power to remand to the trial court. And, however enticing we may find the larger

constitutional question, our inquiry is limited to the question set forth in AEDPA:

whether the OCCA’s decision was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme

Court of the United States. See 28 U.S.C. § 2254(d)(1). Based on the foregoing,

we conclude that it was not.

5. Conclusion

To summarize, in this case, the OCCA: (1) reversed petitioner’s conviction

for first degree burglary based on insufficient evidence; (2) expressly limited its

insufficient-evidence finding to the element distinguishing first degree burglary

from second degree burglary, a lesser included offense under Oklahoma law; (3)

expressly concluded that the evidence in the record satisfied all the elements of

second degree burglary, a conclusion supported by the record; but (4) remanded

for trial on second degree burglary, rather than exercising its right under

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applicable state law to impose a conviction for second degree burglary.

In light of the Supreme Court’s express reservation in Greene, the OCCA

did not “arrive[] at a conclusion opposite to that reached by [the Supreme] Court

on a question of law [nor] . . . decide[] a case differently than [the Supreme]

Court . . . on a set of materially indistinguishable facts.” Williams, 529 U.S. at

413. Nor did the OCCA identify, but engage in an objectively unreasonable

application of, the principles articulated in Ball, Burks, and Greene. Williams,

529 U.S. at 413. Accordingly, petitioner’s appeal fails.

C. Additional Issues

In our August 7, 2002, order, we requested that the parties brief two

additional, subsidiary questions:

(1) Assuming prosecution on the lesser included offense is
permissible, are there other conditions that should affect the
availability of such a procedure?

(2) Should an Indictment and a Jury Instruction on the Lesser
Offense Be Required?

Given that the Supreme Court has declined to address the primary issue on

appeal, it obviously has not set forth any procedural requirements for its

implementation. Thus, the fact that the trial court neither indicted the defendant

nor instructed the jury on the lesser included offense does not alter our earlier

analysis under section 2254(d)(1).

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 III. Conclusion

For the reasons articulated above, we AFFIRM the district court’s denial of

petitioner’s habeas petition.

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