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Douglas v. Jacquez, No. 08-17478 (11-24-10) (Bea with Callahan; Graber dissenting).

This is an interesting decision as to whether a court, granting habeas relief, can order the state court to enter judgment on a lesser included offense. This California state habeas was filed regarding a conviction for first-degree murder during a robbery and a conviction for arson of an inhabited structure. The sentence of the arson conviction was consecutive. As the facts played out, the arson occurred hours after the murder when the petitioner returned to destroy the evidence. The victim was dead by then. The district court granted relief because of the victim's prior demise, and ordered a judgment on the lesser included of arson of an uninhabited structure. On appeal, the petitioner argued that the district court could not so order because it violated double jeopardy. The 9th found no double jeopardy violation, but that the court could not order the lesser entered; it was up to the state to so resentence. The court's habeas power is limited to vacation or postpone of vacation for a reasonable period to allow the state to resentence. The state could resentence because of state law as to sentencing for lesser included offenses when the trial evidence indicates that the defendant is not guilty of the greater crime but is guilty of the lesser. Although the jury was not instructed on the lessers here, the jury had to find the lesser offense to convict on the greater. The district court should grant the relief and let the state resentence. Graber, dissenting, argues that double jeopardy is implicated. The jury was not instructed on lesser offenses here. As such, the district court could only grant the unconditional habeas. Double jeopardy is implicated because the petitioner may have gone with an all or nothing strategy.

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