               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


          United States Court of Appeals
                       For the First Circuit


No. 04-1197

                        AURELIO PINERO, JR.,

                       Petitioner, Appellant,

                                     v.

                           PAUL H. VERDINI,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                  Before

                 Campbell, Senior Circuit Judge,
              Torruella and Selya, Circuit Judges.



     Aurelio Pinero on brief pro se.
     Thomas F. Reilly, Attorney General, and Daniel I. Smulow,
Assistant Attorney General, on brief for appellee.



                          February 22, 2005
            Per Curiam. We affirm the judgment substantially for

the reasons set forth in the district court's decision, Pinero

v. Verdini, 295 F. Supp. 2d 184 (D. Mass. 2003), adding only

the following comments.        At issue in this habeas petition is

whether, after a jury convicts on a lesser included offense but

deadlocks on a greater included offense, retrial of the latter

is   permissible      under   the   Double   Jeopardy       Clause.      The

Massachusetts Appeals Court rejected petitioner's argument that

such a retrial constitutes a forbidden second prosecution for

the same offense.       Commonwealth v. Pinero, 49 Mass. App. Ct.

397 (2000).       On habeas review, the question is whether that

ruling     "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).       Neither of these standards has been met here.

            As the district court explained at greater length,

petitioner was charged in separate indictments with (1) assault

and battery and (2) assault with intent to rape.                      A jury

convicted him of the former charge but reported that it was

unable to reach a unanimous verdict on the latter.                      With

petitioner's concurrence, a mistrial was declared as to the

latter charge.      A second trial before a new jury was then held

on   the   assault-with-intent-to-rape       charge,    resulting      in   a


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conviction.       Petitioner was thereafter sentenced to concurrent

prison terms on these two counts.

            The double jeopardy issue arises here only because of

a mistaken jury instruction.        Under Massachusetts law, assault

and battery is not a lesser included offense of assault with

intent to rape, since the latter crime does not require proof

of   a   physical    touching.      Yet    at   both    trials   the   judge

instructed the jury that physical touching was an element of

that     crime.      As   the    Appeals   Court       concluded,   "[t]his

instruction became the law of the case ... and had the effect

of making assault and battery, for purposes of this case only,

a lesser included offense of the charge of assault with intent

to rape."     49 Mass. App. Ct. at 399.         The Appeals Court ended

up vacating the assault-and-battery conviction as duplicative,

while rejecting petitioner's argument that the second trial was

improper.    See id. (relying on holding in Richardson v. United

States, 468 U.S. 317 (1984), that retrial following hung jury

does not violate double jeopardy).

            In advancing this argument, petitioner has sought

support from a pair of Supreme Court decisions involving, not

jury deadlock, but jury silence.           In Green v. United States,

355 U.S. 184 (1957), and again in Price v. Georgia, 398 U.S.

323 (1970), the Court confronted the following situation:

greater and lesser included offenses were presented to the


                                    -3-
jury; the jury convicted on the lesser but was silent as to the

greater (by leaving part of the verdict form blank); the

conviction was reversed and the matter remanded for retrial;

and defendant was again tried on both counts (with Green being

convicted of the greater and Price again being convicted of the

lesser).      In each case, the Court ruled that, for double

jeopardy purposes, retrial had to be limited to the lesser

offense.

           As the Price Court noted, this conclusion rested on

"two premises":

           First, the Court [in Green] considered the
           first jury's verdict of guilty on the
           [lesser charge] to be an "implicit
           acquittal"   on   the  [greater   charge].
           Second, and more broadly, the Court
           reasoned that petitioner's jeopardy on the
           greater charge had ended when the first
           jury "was given a full opportunity to
           return a verdict" on that charge and
           instead reached a verdict on the lesser
           charge.

Id. at 328-29 (quoting Green, 355 U.S. at 190-91).   Petitioner

disclaims any reliance on the "implicit acquittal" rationale,

for an understandable reason: "[a] jury's express statement

that it could not agree on a verdict as to the greater offense

obviously precludes the inference that there was an implied

acquittal." United States v. Bordeaux, 121 F.3d 1187, 1192 (8th

Cir. 1997).




                              -4-
           Instead, petitioner relies on the second "premise."

In his view, this other rationale is unconnected to any notion

of implicit acquittal; rather, it is said to apply whenever a

jury, having had a "full opportunity" to return a verdict on

the greater charge, fails to do so because of jury deadlock

(while convicting on the lesser).       As the district court

observed, the dearth of relevant authority makes it difficult

to reject this argument outright-–i.e., to conclude that under

no circumstances could the second Green/Price rationale be

construed to encompass such a situation.   Yet we think such a

construction highly unlikely for reasons explained in the Green

opinion.

           The Court there described its second premise as

follows:

           But the result in this case need not rest
           alone on the assumption, which we believe
           legitimate, that the jury for one reason
           or another acquitted Green of [the greater
           offense].     For here, the jury was
           dismissed without returning any express
           verdict on that charge and without Green's
           consent.     Yet it was given a full
           opportunity to return a verdict and no
           extraordinary circumstances appeared which
           prevented it from doing so. Therefore it
           seems clear, under established principles
           of former jeopardy, that Green's jeopardy
           for [the greater offense] came to an end
           when the jury was discharged so that he
           could not be retried for that offense.
           Wade v. Hunter, 336 U.S. 684.




                              -5-
Green, 355 U.S. at 191.       As the citation to Wade suggests, the

Court's mention of "established principles" seems a clear

reference to an earlier part of its opinion, where it stated

that "a defendant is placed in jeopardy once he is put to trial

before a jury so that if the jury is discharged without his

consent he cannot be tried again."          Id. at 188 (citing Wade).

And the Court there immediately took note of an exception to

that rule: "jeopardy is not regarded as having come to an end

so as to bar a second trial in those cases where <unforeseeable

circumstances ... arise during [the first] trial making its

completion impossible, such as the failure of a jury to agree

on   a   verdict.'"   Id.    (quoting    Wade,    336    U.S.   at   688-89)

(emphasis added; brackets in original).

            In light of this discussion, the second Green/Price

rationale    is   unlikely    to   apply   to    cases   where   the   jury

deadlocks on the greater offense but convicts on the lesser.

Cf. Sattazahn v. Pennsylvania, 537 U.S. 101, 112-13 (2003)

(opinion of three Justices so suggesting); Bordeaux, 121 F.3d

at 1190-93 (so holding under mostly comparable circumstances).

For these reasons, as well as the others recited by the

district court, the state court's decision cannot be said to

have contravened or unreasonably applied clearly established

federal law as determined by the Supreme Court.

            Affirmed.


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