Date: 07-07-2015

Case Style: Keynon Michael Owens v. Anit trammell

Case Number: 13-5066

Judge: Tymkovich

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney: Ashley L. Willis, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Office of the Oklahoma Attorney General,
Oklahoma City, Oklahoma, for Appellee.

Defendant's Attorney: Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender,
Denver, Colorado, for Appellant.

Description: Oklahoma has successfully tried Keynon Owens twice for the first degree
felony murder of Javier Carranza during a botched robbery of Javier and his
cousin, Jesus Carranza. The first trial resulted in a guilty verdict on felony
murder, but an acquittal on the predicate charge of the armed robbery of Javier.
The Oklahoma Court of Criminal Appeals (OCCA) reversed the murder
conviction and remanded for retrial on the ground that error committed by the
trial court resulted in a substantial possibility of prejudice—specifically, that
Owens may have been convicted based on his involvement in the robbery as a
whole rather than the predicate felony charged in the information.
A second trial also resulted in a conviction on felony murder. On his
second appeal to the OCCA, Owens unsuccessfully argued that his retrial violated
the Double Jeopardy Clause’s command that “no person [shall] be subject for the
same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
He contended the jury’s acquittal on the predicate robbery felony (of Javier) at his
first trial should have barred the State from retrying him for felony murder under
constitutional principles of collateral estoppel. To win a felony murder
conviction on retrial, the State had to prove that he robbed Javier and that issue,
he argued, was already decided in his favor by the first jury’s acquittal. Thus, the
retrial forced him “to run the gantlet a second time.” Ashe v. Swenson, 397 U.S.
436, 446 (1970) (internal quotations omitted).
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Owens next sought habeas relief under 28 U.S.C. § 2254 in federal district
court. Deferring to the OCCA’s interpretation of federal law, the district court
held the denial of Owens’s collateral estoppel claim was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent. Owens
v. Addison, No. 12–CV–0117–CVE–FHM, 2013 WL 1828049 (N.D. Okla. Apr.
30, 2013).
We granted a certificate of appealability (COA) to decide whether Owens’s
retrial for felony murder violated the Double Jeopardy Clause. Exercising
jurisdiction under 28 U.S.C. § 1291, we now reach the same conclusion as the
district court in reviewing the denial of Owens’s petition for a writ of habeas
corpus. In our view, Owens has not met his burden of “show[ing] that the state
court’s ruling . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
We therefore AFFIRM the denial of the petition and dismiss this appeal.
I. Background
The factual and procedural backgrounds are especially important in
understanding this appeal, so we recite them in some detail before turning to the
relevant Supreme Court precedent.
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A. Factual Background
While at a Tulsa strip club, cousins Javier and Jesus Carranza arranged to
meet Brandi Lindsey, one of the dancers, after the club closed. Lindsey then
called her boyfriend, Joe Sanders, and the two crafted a plan to rob the Carranzas.
At 2:00 am, Javier and Jesus followed Lindsey to the apartment complex where
she and Sanders lived.1 Although the accounts of what happened next differed
slightly at trial, everyone agrees that when the Carranzas arrived at the apartment
complex they were confronted by two men, later identified as Sanders and
Keynon Owens. Sanders demanded money. When the Carranzas ran, he shot
both men. Owens went to where Jesus lay wounded on the ground and took his
wallet and keys. Sanders meanwhile told Javier—“I told you not to run”—shot
him two more times at point blank range, and then took his wallet. Javier died at
the scene.
The State charged Owens with four counts that are important to keep in
mind in understanding the two resulting trials:
Count II – first degree felony murder of Javier with the predicate felony
specified as robbery with a dangerous weapon of Javier;
Count III – shooting with intent to kill of Jesus;
Count IV – robbery with a dangerous weapon of Javier; and
Count V – robbery with a dangerous weapon of Jesus.
1 Because Javier and Jesus share a last name, we refer to them by their first
names.
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Sanders was charged in the same information with the same counts (in addition to
first degree murder) and tried jointly with Owens. Lindsey, who was also
charged, reached a plea deal and testified against Owens and Sanders at trial.
B. Procedural Background
1. The First Trial
In the opening instructions, the trial judge instructed the jury, consistent
with the information, that the felony murder charge against Owens was predicated
on the armed robbery of Javier. At the close of trial, however, the jury was sent
to deliberate with the following felony murder instruction:
No person may be convicted of felony murder unless the State
has proved beyond a reasonable doubt each element of the crime.
These elements are:
First, the death of a human;
Second, the death occurred as a result of an act or event
which happened in the defendants’ commission of robbery
with a dangerous weapon;
Third, the elements of the robbery with a dangerous
weapon the defendants are alleged to have been in the
commission of are as follows:
First, wrongfully;
Second, attempting to take;
Third, and carry away;
Fourth, personal property;
Fifth, of another;
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Sixth, from the person or the immediate presence
of another;
Seventh, by force or fear;
Eighth, through use of a loaded firearm.
R., Vol. I at 228 n.13. The instruction did not specify that Owens could be found
guilty of felony murder only if, in determining the third element, the jury found
the death occurred during the commission of the robbery of Javier with a
dangerous weapon. Because Owens was charged with both the robbery of Javier
and the robbery of Jesus and because the jury was also given an aiding and
abetting instruction, the felony murder instruction opened the door to confusion
as to which conduct the jury could consider in returning a felony murder
conviction.
This confusion played out in a series of notes from the jury to the trial
judge. One note asked, “Can we consider Instruction 372 second element to be
the whole robbery of both Javier and Jesus[?] We are making the Instruction 473
robbery of Javier separate from Jesus. Is that correct?” Id. at 229. The trial
judge responded, “Instruction #47 relates to count 4 robbery of Javier Carranza. I
don’t understand the question concerning Instruction #37.” Id. at 230 n.18.
Another note asked, “Can we say not guilty for Keynon Owens on Count
2 Instruction 37 provided the instruction for felony murder.
3 Instruction 47 provided the instruction for robbery with a dangerous weapon.
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4—robbery w/ dangerous weapon of Javier while at the same time saying guilty
for . . . Owens on Count 2—felony murder? Would that even make sense?” Id. at
229. The judge responded, “I cannot advise you how to decide the case.” Id. at
230 n.18.
The jury returned the following verdict, illustrated in the table below:
guilty of felony murder of Javier (Count II), not guilty of shooting Javier with
intent to kill (Count III), not guilty of robbery with a dangerous weapon of Javier
(Count IV), and guilty of robbery with a dangerous weapon of Jesus (Count V).
In other words, the jury found Owens guilty of causing Javier’s death while
robbing him with a dangerous weapon, but not guilty of robbing him with a
dangerous weapon.
Count Charge Jury Verdict in First Trial
2
First degree felony murder of
Javier with the predicate felony
specified as the robbery of
Javier with a dangerous weapon
Guilty
3 Shooting Javier with intent to
kill
Not guilty
4 Robbery with a dangerous
weapon of Javier
Not guilty
5 Robbery with a dangerous
weapon of Jesus
Guilty
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2. The First Appeal to the OCCA
On appeal to the OCCA after his first trial, Owens raised what the court
interpreted as two distinct sufficiency of the evidence arguments. The first was a
traditional sufficiency argument that the evidence presented at trial could not
sustain the murder conviction or the Jesus robbery conviction. On this ground,
the court “d[id] not hesitate to conclude that the evidence presented . . . was more
than sufficient to sustain Owens’ convictions.” Id. at 223. Specifically with
regard to the murder conviction, the court found that “despite the jury’s decision
to acquit Owens of the armed robbery of Javier (Count IV), the evidence
presented at trial was also sufficient to convict Owens of this robbery and to
convict him of the felony murder of Javier, with this robbery as the underlying
felony (Count II).” Id. at 224.
The second argument before the OCCA was that the evidence must have
been insufficient to convict him of felony murder because the jury acquitted on
the predicate felony. The OCCA interpreted this as an argument that the verdict
was “logically inconsistent and result[ed] in an inconsistent verdict.” Id. at 225.
Citing Supreme Court precedent, the OCCA found that the logical inconsistency
in the verdicts did not impugn the validity of the murder conviction. The court
did not stop there, however. Relying on the trial court’s closing instructions and
the jury notes, the court found that “it [was] far from clear that the jury who tried
Owens was choosing to render an inconsistent verdict.” Id. at 226–27. Rather,
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the court believed “the record strongly suggest[ed] that the jury was struggling to
figure out how to interpret the court’s felony murder jury instructions and that the
jury was, in fact, attempting to render a verdict that was both logical and
consistent with instructions that the jury found confusing, particularly regarding
the felony murder counts and the relationship between Counts II and IV.” Id. at
227.
The court accordingly reversed and remanded the murder conviction for
plain error, finding the cumulative effect of the open-ended jury instruction and
the trial judge’s failure to adequately respond to jury questions resulted in the
substantial possibility that “[t]he jury may well have convicted Owens on Count
II, the felony murder of Javier, based upon a crime that was not charged as the
underlying felony of this murder (the robbery of ‘both’ Carranzas), rather than the
crime that was actually charged as the underlying felony (the robbery of Javier
only).”4 Id. at 231.
3. The Second Trial and the Second Appeal to the OCCA
On remand, Owens moved to dismiss the murder charge on the ground that
retrial would violate the Double Jeopardy Clause. The trial court denied the
4 Owens’s brief on his first appeal is not in the record, but the OCCA dissent
criticized the majority for “sua sponte creating an issue that was not raised by an
appellant” because Owens’s brief had “not even address[ed] the jury’s notes nor
does he argue the jury was in any way confused about what they were to do.” R.,
Vol. I at 236.
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motion, and the State successfully tried Owens for felony murder.5 Owens
appealed the conviction to the OCCA, again contending that the Double Jeopardy
Clause should have been a bar to his retrial.
Owens made two double-jeopardy arguments to the OCCA. He first argued
that because greater and lesser included offenses are the “same offense” for
purposes of double jeopardy, the acquittal on the lesser included offense—the
robbery of Javier—terminated jeopardy not only as to that charge, but also on the
greater included felony murder charge. Retrial on the felony murder charge
therefore violated his right not to be in jeopardy twice for the same offense.
Owens also argued the retrial was barred by constitutional principles of collateral
estoppel. He contended that the jury’s acquittal on the Javier robbery charge
necessarily determined an issue of ultimate fact—that he did not commit the
robbery—by a valid and final judgment. Because the retrial involved the same
parties and the robbery of Javier was an element of the felony murder charge, he
argued collateral estoppel should apply.
The OCCA rejected both arguments. The court recognized that the jury’s
acquittal on the Javier robbery charge terminated jeopardy as to that charge, but
the court disagreed that robbery and felony murder were the “same offense” for
purposes of double jeopardy. Because they were not the same offense, Owens
5 It is undisputed that the State could not have tried Owens again for the robbery
of Javier. The first jury’s acquittal terminated jeopardy on that charge. See Fong
Foo v. United States, 369 U.S. 141, 143 (1962).
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was still subject to continuing jeopardy on the felony murder count. In rejecting
the collateral estoppel argument, the court held that the inconsistency between the
felony murder conviction and robbery acquittal meant collateral estoppel could
not apply because it was impossible to know what the jury decided by its
acquittal.
4. Federal Habeas Proceedings
Owens reasserted his double jeopardy claims in his federal habeas petition.
Although his arguments in his initial petition did not go into any great detail
(perhaps due to the inherent limits of the form petition provided to pro se
prisoners), his reply to the State’s opposition brief clearly spelled out his double
jeopardy arguments. In fact, Owens recited the arguments made by his counsel to
the OCCA on his second appeal nearly word for word.
The district court denied the petition and a COA. See 28 U.S.C.
§ 2254(c)(1)(A) (requiring a COA to appeal to this court). On Owens’s
application for a COA from this court, we granted a COA, appointed counsel, and
ordered supplemental briefing on the following issue: “Did the prosecution of
petitioner on felony murder charges in the second trial, following his acquittal of
the underlying felony in the first trial, violate any aspect of the Double Jeopardy
Clause of the United States (specifically including the Double Jeopardy Clause’s
collateral estoppel component).” Owens v. Addison, No. 13-5066 (10th Cir. Oct.
8, 2013) (order granting COA).
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II. Discussion
In defending the grant of COA, Owens focuses exclusively on the OCCA’s
rejection of his collateral estoppel argument.6 He makes three arguments as to
why the OCCA’s denial of his claim was contrary to, or an unreasonable
application of, Supreme Court precedent:
1. The OCCA failed to undertake the proper analysis in determining
whether the verdicts from the first trial were inconsistent and was
wrong to treat the verdicts as inconsistent, in violation of United
States v. Powell, 469 U.S. 57 (1984).
2. The OCCA unreasonably extended the Supreme Court’s collateral
estoppel analysis to his case or alternatively unreasonably applied
that analysis, in violation of Ashe v. Swenson, 397 U.S. 436 (1970).
3. The OCCA unreasonably relied on the principle of continuing
jeopardy and short-circuited the collateral estoppel analysis, in
violation of Yeager v. United States, 557 U.S. 110 (2009).
6 He does not reassert his argument that the retrial subjected him to successive
prosecution for the same offense. Nor does he challenge the OCCA’s rejection of
his arguments that robbery and felony murder are the “same offense” for purposes
of double jeopardy or that the acquittal on the robbery charge was a jeopardy
terminating event that superseded the continuing jeopardy on the felony murder
charge. We therefore do not decide whether those aspects of the OCCA’s
decision were contrary to, or an unreasonable application of, clearly established
federal law.
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After reviewing the standard and scope of review that controls our analysis,
we take each of the three arguments in turn, identifying the legal framework
relevant to each as we go.
A. Standard and Scope of Review
Our review of the OCCA’s decision is bound by the deferential standards of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Where a
state prisoner raises a claim that has been “adjudicated on the merits in State
court proceedings,” as is the case here, we may intervene only if “the adjudication
of the claim . . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or . . . resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Clearly established law
refers to “the holdings, as opposed to the dicta of [Supreme] Court[] decisions.”
Howes v. Fields, 132 S. Ct. 1181, 1187 (2012) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)).
It is the petitioner’s burden to make this showing and it is a burden
intentionally designed to be “difficult to meet.” Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011); see also Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (“AEDPA
erects a formidable barrier to federal habeas relief . . . .”); Richter, 562 U.S. at
102 (“If this standard is difficult to meet, that is because it was meant to be.”);
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Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014) (“AEDPA stops just short of
imposing a complete bar on federal court relitigation of claims already rejected in
state proceedings.” (internal quotation marks omitted)). AEDPA “reflects the
view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through
appeal.” Richter, 562 U.S. at 102–03 (internal quotation marks omitted).
A state court’s decision is “contrary to” clearly established federal law “if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Court has on a set of materially indistinguishable facts.” Dodd v. Trammell, 753
F.3d 971, 982 (10th Cir. 2013) (alterations omitted) (quoting Williams, 529 U.S.
at 413). “It is not enough that the state court decided an issue contrary to a lower
federal court’s conception of how the rule should be applied; the state court
decision must be ‘diametrically different’ and ‘mutually opposed’ to the Supreme
Court decision itself.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006)
(quoting Williams, 529 U.S. at 406).
The “unreasonable application” prong requires that the state court
“identifie[d] the correct governing legal principle from [Supreme Court] decisions
but unreasonably applie[d] that principle to the facts of the prisoner’s case.” Id.
(quoting Williams, 529 U.S. at 413). The Supreme Court has “stressed that the
relevant inquiry is not whether the state court’s application of federal law was
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incorrect, but whether it was ‘objectively unreasonable.’” Anderson v. Mullin,
327 F.3d 1148, 1153 (10th Cir. 2003) (quoting Williams, 529 U.S. at 413). A
petitioner can satisfy this standard “only by showing that there was no reasonable
basis” for the state court’s determination. Cullen, 131 S. Ct. at 1402 (internal
quotation marks omitted). In other words, “so long as fairminded jurists could
disagree on the correctness of the state court’s decision,” habeas relief is
unavailable. Richter, 562 U.S. at 101 (internal quotation marks omitted).
In undertaking this review, we presume the state court’s factual findings
are correct and place the burden on the petitioner to rebut that presumption by
clear and convincing evidence. Bland, 459 F.3d at 1009 (citing 28 U.S.C.
§ 2254(e)(1)). Our review of the district court’s legal analysis of the state court
decision is de novo. Id.
We now address Owens’s three arguments for habeas relief.
B. Inconsistent Verdicts
Owens’s first argument is that the OCCA erred in concluding that the
verdicts from the first trial were “truly inconsistent” and thus erred in relying on
that inconsistency to reject his collateral estoppel argument.
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1. Supreme Court Framework Applying Collateral Estoppel and
Inconsistent Verdicts
a. Collateral Estoppel
The Double Jeopardy Clause prevents the government from placing a
defendant in jeopardy twice for the same offense. Although most commonly
thought of as a bar to successive prosecutions and multiple punishments for the
same offense, the Supreme Court has held that the Clause also “incorporates the
doctrine of collateral estoppel in criminal proceedings.” Schiro v. Farley, 510
U.S. 222, 232 (1994) (citing Ashe v. Swenson, 397 U.S. 436 (1970)). Just as in
the civil context, collateral estoppel means “when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443.
A jury’s acquittal, for example, “unquestionably terminate[s] . . . jeopardy with
respect to the issues finally decided in those counts” in a second trial on a
separate offense. Yeager v. United States, 557 U.S. 110, 118 (2009). It is the
defendant’s burden to show that the jury’s verdict “necessarily decided” the issue
he seeks to foreclose from relitigation and that the same issue is essential to the
subsequent proceeding. See id. at 119; see also Dowling v. United States, 493
U.S. 342, 350 (1990).
To determine what a jury decided, Ashe held courts are to “examine the
record of [the] prior proceeding, taking into account the pleadings, evidence,
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charge, and other relevant matter,” and “with an eye to all the circumstances of
the proceedings,” ask “whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose from
consideration.” 397 U.S. at 444 (internal quotation marks omitted). If “there
[are] any number of possible explanations for the jury’s acquittal verdict, the
defendant ha[s] failed to satisfy his burden.” Schiro, 510 U.S. at 233 (quoting
Dowling, 493 U.S. at 352) (internal quotation marks omitted).
In Ashe, the defendant was charged with being one of several masked men
who robbed a group of six individuals playing poker. The State unsuccessfully
tried him for the robbery of one of the individual poker players. After he was
acquitted, the State proceeded to try him for the robbery of a different player and
that time the jury returned a guilty verdict. The Supreme Court held “the
subsequent prosecution was constitutionally prohibited,” Yeager, 557 U.S. at 119,
because the “single rationally conceivable issue in dispute before the jury” in the
first trial had been Ashe’s identity as one of the robbers. Ashe, 397 U.S. at 445.
Because the first jury by its acquittal must have decided that Ashe was not one of
the robbers, the State was estopped from relitigating that issue in a subsequent
trial.
b. Powell’s Explanation of Inconsistent Verdicts
What happens when a jury returns inconsistent verdicts? The Supreme
Court has long recognized that “[c]onsistency in the verdict is not necessary,”
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Powell, 469 U.S. at 62 (quoting Dunn v. United States, 284 U.S. 390, 394 (1932)),
and the presence of “a logical inconsistency between a guilty verdict and a verdict
of acquittal does not impugn the validity of either verdict.” Yeager, 557 U.S. at
112. But the Court has also said that inconsistency in verdicts affects a
defendant’s ability to establish collateral estoppel because, where the same jury
returned a conviction that is logically inconsistent with the acquittal that is
purportedly deserving of preclusive effect, it is impossible to know what the jury
decided by the acquittal. Powell, 469 U.S. at 68; see also Standefer v. United
States, 447 U.S. 10, 23 n.17 (1980) (“This inconsistency is reason, in itself, for
not giving preclusive effect to the acquittals . . . .”).
In Powell, the Supreme Court reaffirmed its prior holding in Dunn v.
United States, 284 U.S. 390 (1932), that inconsistent verdicts are not grounds for
reversal. A jury convicted Powell of the compound offense of using the
telephone while committing and facilitating various substantive drug offenses, but
acquitted her of the standalone drug offenses. The Court reasoned that where a
jury returns a “truly inconsistent” verdict, “[t]he most that can be said . . . is that
the verdict shows that either in the acquittal or the conviction the jury did not
speak their real conclusions, but that does not show that they were not convinced
of the defendant’s guilt.” Powell, 469 U.S. at 63 (quoting Dunn, 284 U.S. at
393). Inconsistent verdicts, the Court explained, “even verdicts that acquit on a
predicate offense while convicting on the compound offense—should not
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necessarily be interpreted as a windfall to the Government at the defendant’s
expense. It is equally possible that the jury, convinced of guilt, properly reached
its conclusion on the compound offense, and then through mistake, compromise,
or lenity, arrived at an inconsistent conclusion on the lesser offense.” Id. at 65.
Given that, the Court rejected Powell’s argument that collateral estoppel
should attach to the acquittal and preclude acceptance of the guilty verdict
because “the argument necessarily assumes that the acquittal on the predicate
offense was proper—the one the jury ‘really meant’” and “that, of course is not
necessarily correct; all we know is that the verdicts are inconsistent.” Id. at 68.
And once it is established “that the same jury reached inconsistent results . . .
principles of collateral estoppel—which are predicated on the assumption that the
jury acted rationally and found certain facts in reaching its verdict—are no longer
useful.” Id.
More recently, in Yeager, the Supreme Court resolved a lingering circuit
split on the issue of “whether an apparent inconsistency between a jury’s verdict
of acquittal on some counts and its failure to return a verdict on other counts
affects the preclusive force of the acquittals under the Double Jeopardy Clause.”
557 U.S. at 112. In that case, a jury acquitted Yeager of fraud charges and hung
on insider trading charges. When the government reindicted him on insider
trading, Yeager moved to dismiss on the ground that the fraud acquittals in the
first trial reflected a decision by the jury that he did not possess material,
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nonpublic information—an issue that would reappear in a trial on insider trading.
The Supreme Court held hung counts are “non-events” that have no place in the
collateral estoppel analysis and therefore the acquittal could give rise to collateral
estoppel if, under Ashe, Yeager could show the jury necessarily determined he did
not possess material, nonpublic information.
As relevant here, one of the government’s arguments in Yeager was that
allowing the acquittals to preclude retrial on hung counts would violate Powell
because it would impute irrationality to the jury. The argument was that if the
jury’s acquittal on the fraud counts was based on a finding that the government
failed to establish Yeager possessed material, nonpublic information, it would
have been irrational for the jury to then hang, rather than acquit, on insider
trading.
In rejecting the government’s argument, the Court distinguished Powell on
two grounds. First, the Court stated that an inconsistency between a verdict and a
hung count is fundamentally different than an inconsistency between verdicts.
Because a jury speaks through its verdicts, courts must give “each verdict full
effect, however inconsistent.” Id. at 124. Second, the Court disagreed with the
premise that “a mistried count can, in context, be evidence of irrationality.” Id. at
124–25. Hung counts, unlike verdicts, cannot be evidence of anything because
they reflect only a failure to decide. Id. at 125.
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2. Application
Owens contends the OCCA’s decision was contrary to, or an unreasonable
application of, clearly established law because the court applied the rule in Powell
to his collateral estoppel argument in a case that did not involve truly inconsistent
verdicts. He argues that the verdicts are inconsistent only in a “formal”
sense—that is, only when compared to the crimes as charged in the information.
When viewed in the context of the jury instructions and the jury notes, however,
they can be reconciled. A rational jury following the trial court’s instructions
could only have acquitted on robbery because they believed Owens was not guilty
and convicted on murder because they believed the predicate offense could be
either the robbery of Jesus or some combination of the robbery of Javier and
Jesus. If that is true and the verdicts were not “truly inconsistent,” Owens says
Powell did not preclude the application of collateral estoppel to the acquittal. In
support, he points us to the language in the OCCA’s first opinion finding the jury
was striving to return consistent verdicts. The State argues in response that this
argument is waived because it was never raised below.
This court is aware that Owens received the benefit of new counsel after we
granted a COA. While we appreciate counsel’s well-reasoned argument, we must
agree with the State that this theory of consistency between the verdicts is raised
for the first time in the supplemental briefing.
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In fact, as we recounted above, Owens relied on the inconsistency of the
verdicts before the OCCA on his first appeal to make his sufficiency challenge.
And on his second appeal to the OCCA, Owens’s collateral estoppel argument
was not that the verdicts were consistent, but that the “legal principles” of Yeager
should apply to his case. He explicitly invoked Yeager’s discussion of “collateral
estoppel, inconsistent verdicts, and how an acquittal factors into that equation.”
R., Vol. 1 at 88 (emphasis added). Specifically, Owens pointed to the Court’s
discussion of the unassailable finality of acquittals in double jeopardy
jurisprudence and the Court’s statement that “[a] jury’s verdict of acquittal
represents the community’s collective judgment regarding all the evidence and
arguments presented to it.” Id. (quoting Yeager, 557 U.S. at 122). Although he
acknowledged that “the facts in Yeager are not exactly the same as those in his
case because his case involves an acquittal and a conviction while Yeager
involves an acquittal and a mistrial due to a hung jury,” he argued that “the
Court’s discussion of the legal principles are applicable in both cases.” Id. His
argument was that just as the apparent inconsistency between the acquittal and the
hung counts in Yeager did not affect the preclusive force of the acquittal, the
same should be true in his case. In other words, collateral estoppel should apply
in spite of the inconsistency. See also Oral Argument at 2:32–2:42 (“He didn’t
specifically say that those two verdicts were consistent based on how the [OCCA]
decided the first trial.”).
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This is the theory Owens repeated in his federal filings, including his
habeas petition and his reply to the State’s opposition to his petition.7 Nothing in
the district court’s opinion suggests it confronted the issue of whether the verdicts
were “truly inconsistent.”
Owens contends the argument is preserved on appeal because his
overarching argument has always been that the acquittal was entitled to preclusive
effect. There was a collateral estoppel claim before the OCCA, before the district
court, and now before us on appeal, and that, he says, is enough. We cannot
agree. We have long applied the rule that we do not consider issues not raised in
the district court to bar not only “a bald-faced new issue” presented on appeal, but
also situations “where a litigant changes to a new theory on appeal that falls
under the same general category as an argument presented [below].” Lyons v.
Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993). Because the
argument was not raised in his habeas petition, it is waived on appeal.8 See
Stouffer v. Trammell, 738 F.3d 1205, 1222 n.13 (10th Cir. 2013); Jones v. Gibson,
7 Owens argues that the form habeas petition provided to pro se litigants required
him to do no more than identify his double jeopardy claim. But the district court
was not relying solely on Owens’s form petition. He also filed a response to the
State’s brief in opposition to his habeas petition. The response copied his
counsel’s argument from his second appeal to the OCCA nearly word for word.
As already discussed, that brief did not raise the argument now before us.
8 We do not reach the State’s argument that Owens failed to exhaust his state
court remedies because we base our decision on Owens’s failure to raise the
theory in the district court.
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206 F.3d 946, 958 (10th Cir. 2000); Rhine v. Boone, 182 F.3d 1153, 1154 (10th
Cir. 1999).
Even so, if we were to interpret Owens’s argument below broadly and find
the argument preserved, he would still not be entitled to relief. His argument is
that the OCCA did not consider whether the verdicts were truly inconsistent as
Powell requires and thus applied a legal standard that contradicts governing law.
The problem is that Powell did not address the precise issue raised by Owens:
how to determine if verdicts are truly inconsistent. The Court had no reason to
discuss whether the verdicts were in fact inconsistent because Powell’s argument
invoked and relied on the inconsistency and the government did not challenge the
inconsistency. Powell, 469 U.S. at 61 n.5. Faced with such a consistency
argument, should courts review the record, attempt to reconcile the verdicts, and
if a possible path to consistency (and therefore jury rationality) exists, find the
rule in Powell inapplicable and give collateral estoppel effect to the acquittal? Or
should courts decline to speculate as to why the jury reached facially inconsistent
results?
Powell does say “[truly] [i]nconsistent verdicts . . . present a situation
where ‘error,’ in the sense that the jury has not followed the court’s instructions,
most certainly has occurred, but it is unclear whose ox has been gored.” 469 U.S.
at 65; see also Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law
of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 791 (1998) (“[I]nconsistent
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verdicts present a certainty of legal error . . . .”). And it appears from the facts
presented by the Court there would have been no path to reconcile the verdicts in
Powell—a rational jury could not have followed the trial court’s instructions and
still have returned the verdict that it did.
The instructions in Owens’s case were different. The trial court’s
instructional error left open a conceivable way to reconcile the verdicts and thus
it is not the case that “error . . . most certainly occurred.” Powell, 469 U.S. at 65.
Owens says this is enough to find the verdicts are not “truly inconsistent” and
if the verdicts are consistent, Powell’s instruction that principles of collateral
estoppel cannot apply in the face of inconsistency would have no place in the
collateral estoppel analysis.
Owens may be right, but to credit his theory of how the jury reached its
inconsistent results runs directly into the Powell Court’s rejection “as imprudent
and unworkable, a rule that would allow criminal defendants to challenge
inconsistent verdicts on the ground that in their case the verdict was not the
product of lenity, but of some error that worked against them. Such an
individualized assessment of the reason for the inconsistency would be based
either on pure speculation, or would require inquiries into the jury’s deliberations
that courts generally will not undertake.” Id. at 66; see also Dunn, 284 U.S. at
394 (“That the verdict may have been the result of compromise, or of a mistake
on the part of the jury, is possible. But verdicts cannot be upset by speculation or
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inquiry into such matters.”). This raises the question of whether and to what
degree it is possible to undertake a review of the record for a path to consistency
without engaging in the speculation and intrusion into the jury’s sovereign space
that Powell instructed lower courts to avoid.
In Owens’s case, for example, the ambiguity in the jury instructions opened
at least two possibilities: (1) the jury acquitted on the Javier robbery charge on
the ground that the government failed to meet its burden and convicted on the
murder charge by using the robbery of Jesus or Owens’s participation in the
robbery as a whole as the predicate; or (2) the jury believed Owens was guilty of
robbing Javier and convicted him of felony murder on that basis, but acquitted on
the lesser charge out of lenity, mistake, or compromise. As Owens points out, we
presume that jurors follow jury instructions and the former reconciles the
verdicts.
But the most convincing evidence that this was the path taken by the jurors
is the notes sent to the judge during deliberations. In one of the notes, for
example, the jury asked whether the predicate felony could “be the whole robbery
of both Javier and Jesus.” R., Vol. I at 229. In another, the jury asked whether a
verdict convicting Owens on felony murder but acquitting him on the robbery of
Javier would “even make sense.” Id. Jury notes, of course, are not solid ground
on which to stand. The dissent in the first direct appeal in the OCCA made the
argument, and it is hard to deny, that “there were no times noted on the jury’s
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notes to the court and we do not know how much time passed between their last
note to the court and the return of the verdict.” Id. at 236; see also United States
v. Espinoza, 338 F.3d 1140, 1148–49 (10th Cir. 2003) (“Further discussion may
have changed minds. And we cannot even be sure that the [jury] note expressed a
jury consensus at the time it was written. It may have represented an effort to
accommodate a minority, or even a single member, of the jury.”). We also cannot
know the impact, if any, of the fact that the jury was properly instructed on felony
murder in the opening instructions. Ultimately, to reach a conclusion one way or
the other, would require “speculation into what transpired in the jury room.”
Yeager, 557 U.S. at 122; see also id. (“Courts properly avoid such explorations
into the jury’s sovereign space . . . .”).
We need not decide what approach to take to an argument that facially
inconsistent verdicts may be reconciled and the ordinary preclusive force may be
applied to an acquittal because our role on AEDPA review ends with a
determination that the law is not clearly established. Fairchild v. Workman, 579
F.3d 1134, 1139 (10th Cir. 2009) (“[W]hether the law is clearly established is
dispositive of the § 2254(d)(1) analysis.”). The Powell Court “did not . . .
address . . . how courts should determine whether verdicts are inconsistent when a
defendant seeking to benefit from the collateral estoppel effect of an acquittal
denies that the acquittal really is in conflict with a conviction that the jury also
rendered. Nor has the Supreme Court had occasion to address that issue in any
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subsequent case.” United States v. Bravo-Fernandez, Nos. 14-1089, 14-1091,
2015 WL 3652599, at *11 (1st Cir. June 15, 2015).9
If this were a direct appeal, Owens’s argument could prove persuasive to
this court or the Supreme Court. But that is not where we are, and AEDPA’s
generous rules of deference apply.
9 The First Circuit was recently faced with an almost identical consistency
argument. After recognizing that there is no Supreme Court guidance on how to
resolve the question, the court determined that “Ashe’s instruction to consider the
record in the prior proceeding in determining what the jury necessarily decided is
fully applicable to this aspect of the collateral estoppel inquiry.” United States v.
Bravo-Fernandez, 2015 WL 3652599, at *11–12. The court proceeded to review
the trial record and ask whether a consistent reading of the verdicts was possible.
Id.; see also People v. Wilson, 852 N.W.2d 134, 151 n.12 (Mich. 2014)
(Markman, J., dissenting) (“Defendant does not argue, and no reasonable
argument could be made, that this is a case in which the error resulting in the
reversal . . . somehow explains the jury’s irrational verdict as might be the case
when, for example, there was some instructional error affecting only the charge
on which defendant was convicted by the jury.”).
Relatedly, some states have declined to apply the Dunn/Powell rule that
inconsistency is not a ground for reversal if it is clear from the record why the
jury reached inconsistent results. See Turner v. State, 655 S.E.2d 589, 592 (Ga.
2008) (explaining that the exception applies “when instead of being left to
speculate about the unknown motivations of the jury the appellate record makes
transparent the jury’s reasoning”). Compare State v. Grey, 685 A.2d 923 (N.J.
1996) (holding that “the Dunn/Powell rule should apply when the reason for the
inconsistent verdicts cannot be determined” and looking to jury instructions and a
jury note in finding the verdicts did not fall within the Dunn/Powell rule), with id.
at 941–42 (Coleman, J., dissenting in part and concurring in part) (arguing that
the majority’s rationale ignores the Powell Court’s language “reject[ing], as
imprudent and unworkable, a rule that would allow criminal defendants to
challenge inconsistent verdicts on the ground that in their case the verdict was not
the product of lenity, but of some error that worked against them” (quoting
Powell, 469 U.S. at 66–67)).
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In sum, we find Owens failed to preserve his challenge to the OCCA’s
finding that the verdicts in the first trial were inconsistent and that a lack of
clearly established Supreme Court law on how to resolve the unusual
circumstances presented here would nonetheless make habeas relief inappropriate.
C. Collateral Estoppel
Owens’s next argument challenges the OCCA’s reliance on, and application
of, the Supreme Court’s collateral estoppel decision in Ashe v. Swenson, 397 U.S.
436 (1970). His argument proceeds in two parts. First, he argues the OCCA
unreasonably extended the legal principles from Ashe to a new context.10 In his
view, the Ashe analysis of asking what a jury necessarily decided is relevant only
where there is a general verdict and the question is whether the jury based its
acquittal on some discrete fact or element of the offense. He contends that
particularized inquiry simply does not apply in a case like his where the ultimate
issue of fact relevant in the subsequent proceeding (the felony murder predicate)
is the entire offense on which the jury acquitted. Second, he argues even if Ashe
does apply, the OCCA applied it unreasonably because Ashe assumes jury
10 Despite Owens’s use of both “contrary to” and “unreasonable extension”
language in the first part of his argument, the core of his argument is that the
OCCA unreasonably extended principles from Ashe to a new context where they
should not apply. Aplt. Br. at 38 (citing Parker v. Scott, 394 F.3d 1302, 1308
(10th Cir. 2005), which recognized the unreasonable-extension argument); see
also id. at 20 (characterizing the argument as an unreasonable extension
argument). In any event, it is clear the OCCA’s rejection of the collateral
estoppel claim is not “contrary to” a holding in Ashe.
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rationality and a rational jury could not have grounded the acquittal on anything
other than a decision that Owens did not rob Javier.
The State argues in response that both arguments reflect a misapprehension
of the OCCA’s reliance on Ashe. We agree. The OCCA’s opinion can only be
characterized as a straightforward application of Powell. The OCCA did begin
its analysis of the collateral estoppel claim by noting that Owens was relying on
Supreme Court cases, including Ashe, “which hold that double jeopardy or
collateral estoppel bars retrial where a jury has necessarily, by acquittal,
determined an issue of ultimate fact which would have to be proved in any
subsequent trial.” R., Vol. I at 209–10. The OCCA also correctly stated that it
was Owens’s “burden to show that the ultimate issue the State seeks to relitigate
was decided in the first proceeding.” Id. at 210 (citing Dowling, 493 U.S. at 350).
But the OCCA’s ultimate conclusion on the collateral estoppel claim was
not that the jury failed to decide an ultimate issue of fact in Owens’s favor, as
required by Ashe. Rather, the OCCA stated that the “inconsistent verdicts in
Owens’s first trial bears on [his] argument that collateral estoppel prevents
retrial.” Id. at 211. The holding was that Owens could not meet his burden to
“show that jurors actually determined he did not participate in the robbery” since
“[w]here jurors have returned inconsistent verdicts, collateral estoppel cannot
apply, because a reviewing or subsequent court cannot determine why jurors
acquitted a defendant of one or more charges.” Id.; see also id. (“Because the
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jury’s verdicts were inconsistent, the record does not show jurors necessarily
decided any issue in Owens’s previous trial which would preclude a conviction
for felony murder on retrial.”). In support, the OCCA cited Powell, not Ashe.
Owens’s unreasonable extension argument fails, at a minimum, because he
concedes in his reply brief that even under his theory of collateral estoppel “the
Powell truly inconsistent test” could nonetheless “defeat” the preclusive effect of
the acquittal.11 Reply Br. at 30. Accordingly, we need not reach Owens’s
argument that the collateral estoppel analysis is altered where the ultimate issue
of fact relevant in the second proceeding is the entire offense underlying the
acquittal in the first proceeding, a proposition we find doubtful. We therefore
turn to his second argument that the OCCA unreasonably applied Ashe to the facts
of his case.
Owens contends Ashe presumes jury rationality since it asks “whether a
rational jury could have grounded its verdict upon an issue other than that which
11 We have previously held that an argument under § 2254(d)’s unreasonableapplication
prong may take the form of an argument that a state court “either
unreasonably extend[ed] a legal principle from Supreme Court precedent to a new
context where it should not apply or unreasonably refuse[d] to extend that
principle to a new context where it should apply.” Parker v. Scott, 394 F.3d
1302, 1308 (10th Cir. 2005) (quoting Carter v. Ward, 347 F.3d 860, 864 (10th
Cir. 2003)). We note, however, that we have not yet had the occasion to consider
an unreasonable-extension argument in the wake of the Supreme Court’s recent
decision in White v. Woodall, 134 S. Ct. 1697, 1703 (2014), rejecting its
counterpart, the unreasonable-refusal-to-extend argument. In White, the Court
reasoned that “if a habeas court must extend a rationale before it can apply to the
facts at hand, then by definition the rationale was not clearly established at the
time of the state-court decision.” Id. at 1706 (internal quotation marks omitted).
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the defendant seeks to foreclose from consideration.” 397 U.S. at 444. Because
he says the only path to rationality in this case is that the jury read the felony
murder instruction not to require a finding that Owens robbed Javier, the jury, by
its acquittal, necessarily decided he did not rob Javier.
This argument misunderstands the interplay between Powell and Ashe. A
determination that Powell applies precedes any application of the Ashe analysis
because once Powell applies, the presumption that we can determine what the jury
necessarily determined by its acquittal is no longer available. Said another way,
it is of no consequence whether, absent the presence of inconsistent verdicts, the
acquittal would be entitled to preclusive effect. In Powell, the Court recognized
that collateral estoppel is premised on the assumption that the jury acted
rationally. Because inconsistency in verdicts means that the jury may have acted
irrationally, an exercise predicated on jury rationality and the assumption that the
jury found certain facts in reaching its verdict is “no longer useful.” 469 U.S. at
68.
Given the OCCA’s finding that the verdicts in Owens’s first trial were
inconsistent, it was not objectively unreasonable for the court to find the
inconsistency precluded Owens from establishing the preclusive effect of the
acquittal.12
12 Although we may look only to Supreme Court holdings in assessing a habeas
petition under § 2254(d), we note that most courts have reached the same result in
(continued...)
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D. Continuing Jeopardy
Owens’s final argument is that the OCCA’s holding that Owens was subject
to continuing jeopardy on the felony murder charge was contrary to clearly
established law. Specifically, he contends that even where continuing jeopardy
would otherwise allow for retrial on a charge, Yeager establishes that collateral
estoppel may nonetheless act as a bar to the second trial.
The Double Jeopardy Clause is not “an absolute bar to successive trials.”
Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 308 (1984); see also Oregon
v. Kennedy, 456 U.S. 667, 672 (1982) (“The Double Jeopardy Clause . . . does not
offer a guarantee to the defendant that the State will vindicate its societal interest
12(...continued)
considering the application of collateral estoppel to a case of inconsistent
verdicts. See Bravo-Fernandez, 2015 WL 3652599, at *5, *12; Simpson v.
Lockhart, 942 F.2d 493, 496 (8th Cir. 1991); United States v. Citron, 853 F.2d
1055, 1058 (2d Cir. 1988) (“The defendant’s burden is particularly difficult to
satisfy when the jury has reached inconsistent verdicts. Such verdicts, whether
based on error, confusion, or a desire to compromise, give little guidance as to the
jury’s factual findings.”); Hoffer v. Morrow, 797 F.2d 348, 352 (7th Cir. 1986)
(“[A]n inconsistent verdict cannot be used to establish collateral estoppel and
thereby bar retrial under the double jeopardy clause . . . .”); United States v.
Price, 750 F.2d 363, 266 (5th Cir. 1985); United States v. Bruno, 531 F. App’x
47, 49 (2d Cir. 2013); Evans v. United States, 987 A.2d 1138, 1142–43 (D.C.
2010); State v. Kelly, 992 A.2d 776, 786 (N.J. 2010) (“Thus, in cases of
inconsistent verdicts returned by the same jury at the same trial, the doctrine of
collateral estoppel or issue preclusion has no meaning, because it cannot be
determined why a jury returned an acquittal.”); see also 2A Charles Alan Wright
et al., Federal Practice & Procedure § 468 (4th ed. 2015) (“Res judicata concepts
are not applicable to inconsistent verdicts.”). But see People v. Michigan, 852
N.W.2d 134 (Mich. 2014) (holding that inconsistent vacated convictions have no
place in the collateral estoppel analysis of an acquittal).
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in the enforcement of the criminal laws in one proceeding.”). As a general
matter, the Clause does not bar reprosecution if a jury fails to reach a verdict or if
a defendant successfully appeals a conviction on a ground other than sufficiency
of the evidence. Justices of Bos., 466 U.S. at 308; see also United States v. Ball,
163 U.S. 662, 672 (1896). The reprosecution is considered a continuation of the
original jeopardy. Yeager, 557 U.S. at 118.
In Yeager, the defendant achieved a hung verdict on several insider trading
counts and the government sought to retry him. The Supreme Court recognized
that the government would ordinarily be free to reprosecute Yeager on the insider
trading counts because the jury’s failure to reach a verdict meant jeopardy on
those charges had not terminated. The Court found, however, that “the question
presented [could not] be resolved by asking [only] whether the Government
should be given one complete opportunity to convict” Yeager because the Double
Jeopardy Clause also embodies a second, dueling interest “in the preservation of
the finality of judgments.” Id. (internal quotation marks omitted). The interest in
“preserving the finality of the jury’s judgment on the fraud counts” meant that
collateral estoppel may nonetheless apply to bar the reprosecution on the insider
trading counts despite the continuing jeopardy.
After reciting the uncontroversial proposition after Yeager that continuing
jeopardy does not end the inquiry where a defendant also argues collateral
estoppel applies, Owens succinctly concludes “[t]he OCCA’s reliance on
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continuing jeopardy contradicts the governing law.” Aplt. Br. at 36 (internal
quotation marks omitted). We cannot agree. The OCCA stated that continuing
jeopardy applies to the felony murder charge and then went on to consider
whether collateral estoppel nonetheless precluded the retrial. The OCCA
concluded that collateral estoppel did not apply given the inconsistency of the
verdicts in the first trial, and thus, continuing jeopardy permitted Owens to be
retried on the felony murder charge. The OCCA never said that because Owens
was subject to continuing jeopardy, collateral estoppel could not be a bar to his
retrial.
Thus, we find no basis for finding the OCCA’s decision was contrary to
clearly established law.

Outcome: Owens has not met his burden of showing that one of § 2254(d)’s
exceptions applies. Applying AEDPA deference, we cannot grant relief.

AFFIRMED.

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