                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

GREGORY PAUL WILSON,                  
              Petitioner-Appellant,         No. 07-35478
                v.
                                             D.C. No.
                                          CV-06-00951-ALA
BRIAN BELLEQUE, Oregon State
Penitentiary,                                OPINION
              Respondent-Appellee.
                                      
       Appeal from the United States District Court
                for the District of Oregon
         Ann L. Aiken, District Judge, Presiding

                 Argued and Submitted
          August 28, 2008—Seattle, Washington

                  Filed February 5, 2009

  Before: Thomas G. Nelson, Michael Daly Hawkins, and
              Jay S. Bybee, Circuit Judges.

                 Opinion by Judge Bybee




                           1291
1294                WILSON v. BELLEQUE




                        COUNSEL

Richard L. Wolf (argued), Portland, Oregon, C. Renee Manes,
Assistant Federal Public Defender, Portland, Oregon, for the
petitioner-appellant.
                      WILSON v. BELLEQUE                   1295
Hardy Myers, Attorney General of the State of Oregon, Mary
Williams, Solicitor General, Timothy A. Sylwester, Assistant
Attorney General, David B. Thompson (argued), Salem, Ore-
gon, for the respondent-appellee.


                          OPINION

BYBEE, Circuit Judge:

   Gregory Paul Wilson appeals the district court’s denial of
his petition for a writ of habeas corpus to prevent the State of
Oregon from retrying him on three charges of felony murder.
We first address two jurisdictional issues: Whether Wilson is
currently “in custody” within the meaning of 28 U.S.C.
§ 2241(c)(3), and whether we may consider his appeal when
no certificate of appealability (“COA”) has been issued. 28
U.S.C. § 2253(c)(1)(A). Concluding that Wilson’s appeal is
properly before us, we reject his double jeopardy claim and
affirm the district court’s denial of habeas relief.

                               I

   In July 1992, a woman named Misty Largo was murdered.
Wilson was indicted in connection with her death by an Ore-
gon grand jury on September 14 of the same year. In early
1993, the state filed a superseding indictment. Oregon has
since tried Wilson twice on the charges included in this super-
seding indictment. The State now seeks to try him for a third
time on felony murder charges.

   Before enumerating the precise charges Wilson faced in his
previous two trials, a rudimentary summary of the Oregon
murder statutes is necessary. Oregon law recognizes three
general types of murder that are relevant to this appeal. The
first type is intentional murder. See OR. REV. STAT.
§ 163.115(1)(a) (“[C]riminal homicide constitutes murder . . .
1296                 WILSON v. BELLEQUE
[w]hen it is committed intentionally.”). The second type is
felony murder, which requires that the murder be committed
“in the course of and in furtherance of” one of several statu-
torily enumerated felonies. OR. REV. STAT. § 163.115(1)(b).
The State is not required to prove that the defendant person-
ally committed the murder to sustain a felony murder charge
under § 163.115(1)(b). Aggravated murder, the third type, is
the most serious murder charge available. Among other cir-
cumstances, a defendant is guilty of aggravated murder where
he “personally and intentionally” murdered the victim in the
course of and in furtherance of committing one of the felonies
enumerated in the felony murder statute. OR. REV. STAT.
§ 163.095(2)(d).

   The superseding indictment against Wilson contained nine
counts of aggravated murder, one count of intentional murder,
and four counts of felony murder, as well as charges of kid-
napping in the first and second degrees, assault in the third
degree, and abuse of a corpse. When Wilson was arraigned on
the superseding indictment, however, the prosecution moved
to dismiss the four felony murder counts. Wilson was con-
victed of the remaining fifteen charges. On direct appeal, the
Oregon Supreme Court reversed Wilson’s convictions on all
ten murder charges—nine aggravated murder charges and one
ordinary intentional murder charge—but affirmed his remain-
ing convictions. State v. Wilson, 918 P.2d 498 (Or. 1996). The
court remanded the case for a new trial on the various murder
charges.

   In August of 2000, Wilson was retried on eight of the
aggravated felony murder charges as well as the intentional
murder charge. Counts one through eight set forth different
theories of aggravated murder and count nine charged Wilson
with ordinary intentional murder. The trial court also
instructed the jury on lesser included offenses corresponding
to each charged offense: felony murder with respect to counts
one through three, attempted aggravated murder with respect
to counts four through eight, and attempted murder with
                      WILSON v. BELLEQUE                    1297
respect to count nine. Wilson did not object to the trial court’s
instructions on these lesser included charges.

   The trial court further instructed the jury, over Wilson’s
objection, that it could not consider any of the lesser included
offenses unless and until it acquitted Wilson of the corre-
sponding charged offense. The instruction was consistent with
Oregon law. Although the Oregon Supreme Court had
declared “acquittal-first” instructions of this kind unlawful in
1986, see State v. Allen, 717 P.2d 1178, 1181 (Or. 1986) (per
curiam), in 1997 the Oregon legislature statutorily overruled
Allen. See OR. REV. STAT. § 136.460(2) (“Only if the jury
finds the defendant not guilty of the charged offense may the
jury consider a lesser included offense.”).

   The jury returned a mixed verdict. With respect to counts
four through eight, the jury acquitted Wilson of the aggra-
vated murder charges but convicted him of the lesser included
offenses of attempted aggravated murder under those counts.
With respect to count nine, the jury acquitted Wilson of the
intentional murder charge but convicted him of the lesser
included offense of attempted murder. The jury was unable to
reach a verdict on the aggravated murder charges in counts
one through three and, consistent with the trial court’s instruc-
tion, did not reach the lesser included offenses of felony mur-
der under those counts. The trial court accepted the verdicts,
entered a mistrial as to counts one through three, and set them
for retrial.

   Wilson then sought a writ of mandamus from the Oregon
Supreme Court, arguing that his Fifth Amendment right
against double jeopardy barred Oregon from retrying him on
aggravated murder charges. After the Oregon Supreme Court
denied all relief, Wilson filed a petition for a federal writ of
habeas corpus under 28 U.S.C. § 2254. The district court
denied habeas relief, holding that, given the jury’s inconsis-
tent verdicts on the aggravated and intentional murder
charges, it was not an unreasonable application of clearly
1298                      WILSON v. BELLEQUE
established federal law for the state court to allow retrial on
the aggravated murder charges. Wilson v. Czerniak, 238 F.
Supp. 2d 1207, 1214-16 (D. Or. 2002).

   On appeal, we reversed the decision of the district court.
We noted that, under Oregon law, a conviction for aggravated
murder requires the state to prove, among other elements, that
the homicide was “committed intentionally.” Wilson v.
Czerniak, 355 F.3d 1151, 1155 (9th Cir. 2004) (“Wilson I”).
We further noted that “intentional murder does not require
proof of any element not contained within aggravated felony
murder.” Id. at 1155. We therefore held that Wilson’s acquit-
tal on the intentional murder charge barred Oregon from
retrying him for aggravated murder. Id. at 1155-57.

   In reversing the district court’s denial of Wilson’s habeas
petition, we made clear that our decision “rest[ed] entirely on
the intentional murder acquittal.” Id. at 1156. We did not
address, and Wilson did not ask us to address, whether the
jury verdicts in his 2000 trial barred Oregon from prosecuting
him on ordinary felony murder charges. On remand from our
court, however, Wilson nonetheless asked the district court to
bar retrial on the lesser-included offenses of felony murder.
The district court denied this request and issued an order bar-
ring Oregon from retrying Wilson on aggravated murder
charges only.

   Thereafter, the State announced its intention to retry Wil-
son on the three ordinary felony murder charges. On July 7,
2006, Wilson commenced the instant petition for writ of
habeas corpus under 28 U.S.C. § 2241, seeking to prevent his
retrial on these charges. The district court stayed further state
proceedings1 and, on April 30, 2007, denied Wilson’s habeas
petition. Wilson timely appealed to this court.
  1
   Prior to the district court’s stay order, Wilson’s trial had been sched-
uled to begin in October 2006.
                       WILSON v. BELLEQUE                     1299
                                II

   Before we may reach the merits of this case, we must first
establish that we have jurisdiction to consider Wilson’s
habeas claims. The State argues that we lack jurisdiction for
two reasons. First, the State contends that Wilson is not “in
custody” with respect to the charges at issue in this case and,
therefore, that the district court lacked jurisdiction to consider
his habeas petition under 28 U.S.C. § 2241(c)(3). Second, the
State argues that because Wilson has not obtained a certificate
of appealability (“COA”) in this matter, we are precluded
from reaching the merits of his petition. See 28 U.S.C.
§ 2253(c)(1)(A). We consider each of these arguments in turn.

A.   Custody Under 28 U.S.C. § 2241

   Although Wilson’s prior habeas petition was filed pursuant
to 28 U.S.C. § 2254, we have clarified that a habeas petition
raising a double jeopardy challenge to a petitioner’s pending
retrial in state court is properly treated as a petition filed pur-
suant to 28 U.S.C. § 2241. See Stow v. Murashige, 389 F.3d
880, 885 (9th Cir. 2004). Accordingly, both Wilson and the
State agree that, if jurisdiction is proper in the instant case, it
rests on § 2241. At oral argument, however, the State sug-
gested for the first time that the district court lacked jurisdic-
tion to entertain Wilson’s habeas petition.

   [1] Section 2241(c)(3) states that the writ shall not extend
to a state prisoner unless “[h]e is in custody in violation of the
Constitution or laws or treaties of the United States.” The text
of the statute makes clear, and the Supreme Court has con-
firmed, that “custody” is a jurisdictional prerequisite to
habeas review under § 2241(c)(3). See Hensley v. Mun. Court,
411 U.S. 345, 351 (1973) (“The custody requirement of the
habeas corpus statute is designed to preserve the writ of
habeas corpus as a remedy for severe restraints on individual
liberty.”). The State argues that Wilson cannot meet this cus-
todial requirement.
1300                  WILSON v. BELLEQUE
   [2] The State does not, nor could it argue that Wilson is not
in custody. Wilson is currently incarcerated as a result of con-
victions obtained at his 1993 and 2000 trials. By its own
terms, however, § 2241(c)(3) does not encompass any peti-
tioner who is in custody; rather, to obtain habeas review, a
petitioner must allege that he is “in custody in violation of the
Constitution or laws or treaties of the United States.” In this
case, Wilson does not challenge the convictions for which he
is currently incarcerated. The State argues therefore that, even
if the charges currently pending in Oregon state court are in
fact barred by the Double Jeopardy Clause, Wilson is not “in
custody” with respect to them and thus may not obtain habeas
review under § 2241(c)(3) at this time. Although this argu-
ment has some force, the Supreme Court cases interpreting
the custodial requirement compel us to reject it.

   We note at the outset that the Supreme Court has construed
the phrase “in custody” very broadly. “[T]he use of habeas
corpus has not been restricted to situations in which the appli-
cant is in actual, physical custody.” Jones v. Cunningham,
371 U.S. 236, 239 (1963). To satisfy the custody requirement,
the Supreme Court has held that a petitioner must show that
he is subject to a significant restraint upon his liberty “not
shared by the public generally.” Id. at 240. For example, the
custodial requirement has been held met by prisoners released
on parole, id. at 242-43, prisoners released on their own
recognizance, Hensley, 411 U.S. at 351, and prisoners free on
bail, Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2, 291 n.8
(1975).

   [3] The question before us today is whether the current “in
custody” jurisprudence should be construed to include cir-
cumstances where the sovereign seeking to prosecute a peti-
tioner is currently detaining the petitioner based on
convictions or charges not being challenged. We believe that
such an extension is justified under the unique circumstances
of this case and therefore hold that Wilson is “in custody”
within the meaning of § 2241.
                      WILSON v. BELLEQUE                    1301
   There is little doubt that had Wilson not already been incar-
cerated when the State sought to try him for felony murder he
would have either been held pending trial or released on his
own recognizance. Under the Supreme Court’s past decisions,
either of these restrictions would have sufficed to confer
habeas jurisdiction under § 2241(c)(3). See, e.g., Justices of
Boston Municipal Court v. Lydon, 466 U.S. 294, 300-01
(1984). It would be illogical to conclude that a petitioner
released on his own recognizance with an obligation to appear
for trial is “in custody” for the purpose of habeas review but
an incarcerated petitioner who is forced to appear in court to
answer new charges is not. The Supreme Court’s decisions
preclude such an unreasonable conclusion.

   [4] Two Supreme Court cases in particular lead us to the
conclusion that Wilson is “in custody.” First, in Peyton v.
Rowe, 391 U.S. 54 (1968), the Supreme Court held that a pris-
oner serving consecutive sentences is “in custody” under any
one of them and thus can challenge a sentence that he is
scheduled to serve in the future. The Court reasoned that a
contrary rule “represents an indefensible barrier to prompt
adjudication of constitutional claims in the federal courts.” Id.
at 55.

   Had Peyton represented the Supreme Court’s last word on
this subject, our decision in this case would be a difficult one.
The petitioner in Peyton had already been tried and convicted.
The Court’s decision in that case did not address whether the
doctrine allowing for challenges to future confinement applies
where a petitioner has not yet been placed on trial. The
Supreme Court resolved that question in Braden v. 30th Judi-
cial Circuit Court of Kentucky, 410 U.S. 484 (1973).

   [5] In Braden, the petitioner was serving a sentence in an
Alabama prison. Id. at 485. He brought a petition for a writ
of habeas corpus in the United States District Court for the
Western District of Kentucky, alleging that Kentucky’s failure
to afford him a trial on a then three-year-old indictment vio-
1302                  WILSON v. BELLEQUE
lated his constitutional right to a speedy trial. Id. at 485. Much
of the Braden Court’s opinion is devoted to analyzing
whether Braden’s petition was properly filed in the Western
District of Kentucky or in the federal district courts of Ala-
bama. However, before reaching that question, the Court
examined whether Braden was entitled “to raise his speedy
trial claim on federal habeas corpus at this time.” Id. at 488.
The Court observed that it had “adopt[ed] a more expansive
definition of the ‘custody’ requirement of the habeas statute”
and it was now “possible for prisoners in custody under one
sentence to attack a sentence which they had not yet begun to
serve. And it also enable[s] a petitioner held in one State to
attack a detainer lodged against him by another State.” Id. at
498. The Court thus held that Braden was “currently ‘in cus-
tody’ ” for purposes of § 2241(c)(3). Id. at 488.

   There is no material difference between Braden and the
instant case. Wilson is currently incarcerated and does not
challenge the prior convictions that led to his incarceration.
However, this was equally true of the petitioner in Braden.
See id. at 486 (“The validity of petitioner’s conviction on the
Alabama felonies is not at issue here . . . .”). Indeed, the only
arguably relevant difference between Braden and the instant
case favors Wilson’s position. The petitioner’s claim in Bra-
den was that the inaction of Kentucky authorities violated his
constitutional right to a speedy trial, and the relief he sought
was an order directing Kentucky to afford him an immediate
trial. Id. at 485. By contrast, in this case Wilson seeks to pre-
vent the State of Oregon from placing him on trial.

   We recognize that the Braden Court left open in a footnote
“whether, if no detainer had been issued against [Braden, he]
would be sufficiently ‘in custody’ to attack the Kentucky
indictment in an action in habeas corpus.” 410 U.S. at 489
n.4. Unlike in Braden, nothing in the record here indicates
that Oregon has issued a detainer against Wilson in relation
to the charges now at issue. However, the context of the
Court’s reference to the detainer lodged against Braden is
                      WILSON v. BELLEQUE                     1303
important. In the previous sentence, the Court had declared
that “[s]ince the Alabama warden acts here as the agent of the
Commonwealth of Kentucky in holding the petitioner pursu-
ant to the Kentucky detainer,” the petitioner was “in custody.”
Id. Immediately thereafter, the Court noted that its conclusion
may have been different if no detainer existed. The Court thus
referred to the detainer lodged by Kentucky only for the prop-
osition that Alabama was acting as Kentucky’s agent, a fact
the Court felt necessary to reach its conclusion that Braden
was in custody on the Kentucky charges despite being physi-
cally confined by the Alabama authorities.

   [6] Read in context then, we think the most logical reading
of this passage is that issuance of a detainer is at most a juris-
dictional requirement in those cases in which the sovereign
that retains physical custody over the petitioner is distinct
from the sovereign that has lodged the detainer. This interpre-
tation is consistent with post-Braden cases. See, e.g., Harri-
son v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (citing
Braden for the proposition that a “petitioner may challenge
future imposition of sentence for which detainer has been
lodged while in custody for [an] earlier sentence of [a] differ-
ent sovereign” (emphasis added)); Rose v. Morris, 619 F.2d
42, 43 (9th Cir. 1980) (“A state detainer warrant against a fed-
eral prisoner is sufficient ‘custody’ to confer habeas corpus
jurisdiction.” (emphases added)).

   [7] Our interpretation is buttressed by the Braden Court’s
explanation of why the petitioner in that case was “in custo-
dy.” In support of its conclusion, the Court explained that its
decision five years earlier in Peyton had discarded the “pre-
maturity doctrine” and thus permitted a prisoner to attack con-
finement “that would be imposed in the future.” Braden, 410
U.S. at 488-89. The petitioner in Braden was thus permitted
to maintain an action under § 2241(c)(3) based on future con-
finement that would be imposed in connection with the Ken-
tucky charges. Because the Braden Court made clear that the
district court’s jurisdiction in cases like this one is based on
1304                   WILSON v. BELLEQUE
future as opposed to present confinement, the presence or
absence of a detainer simply has no significance, at least in
cases where the sovereign with physical custody and the sov-
ereign pursuing new charges are not distinct.

   Finally, this interpretation comports with common sense. If
a prisoner is being held by one sovereign and a separate sov-
ereign wishes to place that individual on trial for a different
offense, a detainer is at least arguably necessary2 to ensure
that the state with physical custody makes the prisoner avail-
able for trial in the non-holding state and that the prisoner is
not simply released if and when he completes the sentence
imposed by the holding state. By contrast, where, as here, a
petitioner is being held by the same sovereign that seeks to try
him on different charges, the situation is markedly different.

   [8] This case illustrates that distinction. The State of Ore-
gon has Wilson in its custody. Prior to the district court’s
action staying state court proceedings in this matter, Wilson’s
trial was set for October 2006. There can be no doubt that,
unless Wilson is granted habeas relief, Oregon authorities will
ensure his appearance at trial and duly execute any sentence
imposed based upon these charges. In such a situation, a
detainer requirement serves no legitimate purpose and is
wholly inconsistent with the policy, underlying the Court’s
decisions in Braden and Peyton, of encouraging prompt reso-
lution of federal constitutional claims. We decline to give
Braden an interpretation that elevates form over substance,
and renders that decision entirely inapplicable for no logical
reason in a large portion of the cases to which it would other-
wise apply. We therefore conclude that Wilson is “in custody”
for purposes of § 2241(c)(3).
  2
   As the issue is not before us, we express no opinion on whether a
detainer would in fact be necessary to confer jurisdiction under
§ 2241(c)(3) in such a situation.
                       WILSON v. BELLEQUE                     1305
B.   Certificate of Appealability

   [9] Our conclusion that Wilson satisfies § 2241(c)(3)’s cus-
todial requirement does not end our jurisdictional inquiry,
however. 28 U.S.C. § 2253(c)(1)(A), states that a COA is
required to appeal from “the final order in a habeas corpus
proceeding in which the detention complained of arises out of
process issued by a state court.” No COA has been issued in
this case either by the district court or this court. As an initial
matter, Wilson argues that § 2253(c)(1)(A)’s COA require-
ment does not encompass cases, like this one, where a habeas
petition is filed pursuant to § 2241(c)(3). Wilson further
requests that we grant him a COA should we determine that
one is necessary for us to reach the merits of his appeal.

   [10] We conclude that the mere fact that a habeas petition
is filed pursuant to § 2241(c)(3) does not exempt that petition
from § 2253(c)(1)(A)’s COA requirement. In McNeely v.
Blanas, 336 F.3d 822, 832 n.10 (9th Cir. 2003), we stated
“that the applicability of the COA requirement to an appeal in
a habeas case brought by a state pretrial detainee under
§ 2241 is an open question in this Circuit.” We have since
never expressly held that a § 2241(c)(3) petitioner must obtain
a COA. However, we have clarified that “analysis of whether
a COA is necessary does not turn on whether [a petitioner’s]
petition is considered under 28 U.S.C. § 2241 or 28 U.S.C.
§ 2254.” White v. Lambert, 370 F.3d 1002, 1010 n.7 (9th Cir.
2004). We also recently stated, albeit in dicta, that “state pris-
oners proceeding under § 2241 must obtain a COA . . .” Har-
rison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). The
circuits that have expressly considered the issue have con-
cluded that a state prisoner proceeding under § 2241 must
obtain a COA where the target of the habeas petition arises
out of process issued by a state court. See Greene v. Tenn.
Dep’t of Corrs., 265 F.3d 369, 371 (6th Cir. 2001); United
States v. Cepero, 224 F.3d 256, 264 (3d Cir. 2000); Montez
v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000); Stringer v.
Williams, 161 F.3d 259, 262 (5th Cir. 1998).
1306                  WILSON v. BELLEQUE
   [11] We confirm what our cases have previously suggested,
and join the other circuits in holding that a state prisoner who
is proceeding under § 2241 must obtain a COA under
§ 2253(c)(1)(A) in order to challenge process issued by a state
court. There is no analytically sound way to conclude that
petitioners like Wilson are “in custody” for purposes of
§ 2241(c)(3) but not challenging a “detention” under
§ 2253(c)(1)(A). Wilson points to White and Rosas v. Nielson,
428 F.3d 1229 (9th Cir. 2005), for the proposition that
§ 2241(c)(3)’s reference to “custody” is broader than
§ 2253(c)(1)(A)’s reference to “detention.” In both White and
Rosas, we held that a COA was not necessary because the
decision being challenged was administrative, not judicial.
See Rosas, 428 F.3d at 1232; White, 370 F.3d at 1010 (“We
hold that a COA is not required when a state prisoner chal-
lenges an administrative decision regarding the execution of
his sentence.”). In other words, we concluded that a COA was
not necessary because “the detention complained of” did not
“arise[ ] out of process issued by a state court.” In neither of
those cases did we conclude that the petitioner was not chal-
lenging a detention decision at all. (We also note that 28
U.S.C. § 2253(c)(1)(B), the provision concerning COA
requirements for federal prisoners, explicitly states that a
COA is required to appeal from any “final order in a proceed-
ing under section 2255.” By contrast, in setting forth COA
requirements for state prisoners, Congress did not state that a
COA was required to appeal from “the final order in a pro-
ceeding under section 2254.” Rather, Congress stated, more
broadly, that a COA is required where “the detention com-
plained of arises out of process issued by a State court.” 28
U.S.C. § 2253(c)(1)(A). We agree with the Tenth Circuit’s
conclusion that, had Congress intended to restrict the COA
requirement for state detainees to petitions brought pursuant
to § 2254, it would have simply employed the same straight-
forward language that it used in § 2253(c)(1)(B). See Montez,
208 F.3d at 868. We thus follow § 2253(c)(1)(A) and con-
clude that a state petitioner proceeding under § 2241 must
                      WILSON v. BELLEQUE                    1307
obtain a COA where the target of the habeas petition arises
out of process issued by a state court.

   [12] In this case, the target of Wilson’s habeas petition
plainly arises out of process issued by a state court. The Ore-
gon courts have rejected Wilson’s double jeopardy challenge
and the state trial court had set the matter for trial before the
district court stayed state court proceedings. Accordingly, we
conclude that a COA is required for us to consider the merits
of Wilson’s habeas petition and we now consider whether
Wilson is entitled to a COA.

   [13] Under 28 U.S.C. § 2253(c)(2), a COA “may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.” In applying this standard, the
Supreme Court has counseled that “a court of appeals should
not decline the application for a COA merely because it
believes the applicant will not demonstrate an entitlement to
relief.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Thus,
the Supreme Court has made clear that the standard for
obtaining a COA is not a particularly exacting one. In Slack
v. McDaniel, 529 U.S. 473, 479 (2000), the Court declared
that a COA should issue if “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” In Miller-El, the Court fur-
ther clarified that a habeas petitioner need not “prove, before
the issuance of a COA, that some jurists would grant the peti-
tion for habeas corpus” and that “a claim can be debatable
even though every jurist of reason might agree, after the COA
has been granted and the case has received full consideration,
that petitioner will not prevail.” 537 U.S. at 338. See also
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000)
(“[T]he COA requirement constitutes a gatekeeping mecha-
nism that prevents us from devoting judicial resources on friv-
olous issues while at the same time affording habeas
petitioners an opportunity to persuade us through full briefing
and argument of the potential merit of issues that may appear,
at first glance, to lack merit.”); Jefferson v. Welborn, 222 F.3d
1308                 WILSON v. BELLEQUE
286, 289 (7th Cir. 2000) (stating that a COA should issue
unless the claims are “utterly without merit”).

   [14] With this non-demanding standard firmly in mind, we
conclude that Wilson’s double jeopardy claim warrants issu-
ance of a COA. This is a procedurally complicated case and,
as noted above, we have already held that Wilson’s acquittal
on intentional murder charges precluded the State from retry-
ing him on charges of aggravated felony murder. Given the
past history of this case, the State’s subsequent decision to
charge Wilson with non-aggravated felony murder at the very
least raises eyebrows. Furthermore, the jury failed to reach a
verdict at Wilson’s 2000 trial on the felony murder charges at
issue here not because deliberations failed to produce
agreement—the classic case of “manifest necessity” justifying
a mistrial, see Richardson v. United States, 468 U.S. 317, 323
(1984) (quoting United States v. Perez, 22 U.S. (9 Wheat.)
579, 580 (1824))—but because an instruction to which Wil-
son objected at trial prevented the jury from considering those
charges. Under these circumstances, we think that Wilson
“deserve[s] encouragement to proceed further,” Slack, 529
U.S. at 484, in his claim that the Double Jeopardy Clause pro-
hibits his retrial on felony murder charges.

   Before granting Wilson a COA, however, we must address
one unusual circumstance presented by this case. In the typi-
cal case, an application for a COA comes to us following a
district court decision expressly denying the applicant’s
request. In this case, Wilson filed a timely notice of appeal
after the district court issued its decision denying Wilson’s
habeas petition. However, Wilson did not expressly apply to
the district court for a COA. Consistent with his arguments on
appeal, Wilson’s counsel apparently did not believe that a
COA was necessary because Wilson’s habeas petition was
filed pursuant to § 2241. Wilson contends, and the State does
not dispute, that he requested leave to brief the appropriate-
ness of a COA if the district court felt that a COA was neces-
                      WILSON v. BELLEQUE                    1309
sary. However, the district court neither requested briefing nor
took any action granting or denying Wilson a COA.

   The district court’s failure to address the COA issue is
arguably significant because our own rules provide that we
“will not act on a motion for a COA if the district court has
not ruled first.” Ninth Cir. R. 22-1(a). However, unlike
§ 2253(c)(1)(A)’s mandate that a COA must issue prior to our
consideration of the merits of Wilson’s habeas petition, Ninth
Circuit Rule 22-1(a) does not set forth a jurisdictional require-
ment. This point is demonstrated by our decision in United
States v. Martin, 226 F.3d 1042 (9th Cir. 2000). We stated in
Martin that “Slack’s instruction that courts of appeals are to
construe a notice of appeal as an application for a COA so as
to do substantial justice, then, necessarily overrode the appli-
cation of Rule 22-1 in the situation presented by Slack and by
this appeal.” Id. at 1047.

   At the time of the petitioners’ appeals in both Slack and
Martin, existing cases had held that a habeas petitioner did
not need to obtain a COA if the petition was filed before the
effective date of the Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”). Accordingly, the petitioners
had not applied for a COA in the district court and the district
court had taken no action granting or denying a COA. In
Slack, however, the Supreme Court rejected the Ninth Cir-
cuit’s construction of § 2253(c)(1)(A), and held that when a
habeas petitioner appeals the dismissal of a habeas petition
prior to AEDPA’s effective date, § 2253(c)(1)(A)’s COA
requirement applies. 529 U.S. at 481-83. In United States v.
Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001), we noted Mar-
tin’s holding but declined to decide whether this court could
issue a COA under other circumstances where the district
court had not yet acted.

   Martin and Slack presented factual scenarios somewhat dif-
ferent than that presented here. As noted above, prior to Slack,
Ninth Circuit case law had expressly held that petitioners did
1310                     WILSON v. BELLEQUE
not need to obtain a COA if their petition was initially filed
before AEDPA’s effective date. By contrast, no Ninth Circuit
decision has ever held that petitioners in Wilson’s situation
did not need to obtain a COA; the issue was simply undecided
in this Circuit at the time this matter was before the district
court.

   [15] Notwithstanding this difference, however, we con-
clude, as we did in Martin, that Slack’s instruction to construe
a notice of appeal as an application for a COA so as to do sub-
stantial justice counsels against remanding this case to the dis-
trict court with instructions to act on Wilson’s COA request
in the first instance. At the time Wilson filed his notice of
appeal, though dicta in White had indicated that whether a
COA was required did not depend on whether a petition was
filed pursuant to § 2241 or § 2254, we had never expressly
held that a state prisoner proceeding under § 2241 needed to
obtain a COA. Wilson requested leave to brief the appropri-
ateness of a COA if the district court felt that one was neces-
sary, but the district court did not request briefing. The district
court thus had an opportunity to address the COA issue and
declined to do so. For its part, the State never raised the COA
issue until we ordered briefing on the question immediately
prior to oral argument in this case. This matter has been fully
briefed and argued. Deferring consideration of the issues in
this case until the district court expressly acts on Wilson’s
COA request would serve no useful purpose and would be
contrary to the Slack Court’s admonition that we construe a
notice of appeal as an application for a COA so as to do sub-
stantial justice. We therefore grant Wilson a COA on his dou-
ble jeopardy claim and proceed to consider this aspect of his
petition on the merits.3
  3
    In addition to his claim that retrying him on felony murder charges
would violate the Double Jeopardy Clause, Wilson also contends that
retrial would violate his rights under the Due Process Clause and seeks a
COA with respect to that claim as well. Wilson argues that the State “in-
tentionally abandoned” the theory underlying the felony murder charge
                          WILSON v. BELLEQUE                           1311
                                    III

   We review de novo a district court’s decision granting or
denying a petition for a writ of habeas corpus filed pursuant
to § 2241. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147,
1149 (9th Cir. 2002). A petition filed pursuant to § 2241 is not
reviewed under the deferential standards imposed by AEDPA.
Murashige, 389 F.3d at 888. Accordingly, we must grant Wil-
son habeas relief if we conclude on de novo review that retry-
ing him on felony murder charges would violate the Double
Jeopardy Clause. We need not further consider, as we would
for a petition filed pursuant to 28 U.S.C. § 2254, whether the
decisions of the Oregon courts permitting retrial were “con-
trary to” or an “unreasonable application of” clearly estab-
lished federal law as determined by the Supreme Court.
Notwithstanding this more favorable standard of review, we
conclude that Wilson’s double jeopardy claim must be
rejected.

and that it is thus fundamentally unfair to try him based on that theory
now. However, as the district court noted, Oregon law is clear that lesser
included offenses are automatically included under charged offenses and
that ordinary felony murder is a lesser included offense to the aggravated
murder charges of which Wilson was charged. The jury at Wilson’s 2000
trial was properly instructed as to the felony murder charges now at issue
and Wilson did not object at that time. The State’s dismissal of the stand-
alone felony murder charges before Wilson’s first trial is simply attribut-
able to the fact that separately charging a lesser-included offense is con-
sidered superfluous and may subject an indictment to demurrer under
Oregon law. See OR. REV. STAT. § 132.550(7); OR. REV. STAT.
§ 135.630(2); Oregon v. Gibbons, 364 P.2d 611, 613 (Or. 1961) (“It is
unnecessary verbiage to include in indictments the lesser included
offenses derived from the offense charged. It is a well established rule that
an indictment of one offense includes, by necessary implication, charges
of lesser included offenses.”) (internal quotation marks omitted). The State
never “abandoned” the felony murder charges at issue here. Wilson thus
has failed to make “a substantial showing of the denial of a constitutional
right,” see 28 U.S.C. § 2253(c)(2), with respect to his due process claim
and we do not grant him a COA as to that claim.
1312                  WILSON v. BELLEQUE
   [16] The Fifth Amendment’s protection against double
jeopardy, made applicable to the States by the Fourteenth
Amendment, see Benton v. Maryland, 395 U.S. 784, 795-96
(1969), bars both: (1) a successive prosecution on the “same
offense” of which a defendant has been previously acquitted
or convicted, Brown v. Ohio, 432 U.S. 161, 165-66 (1977);
and (2) relitigation of an issue that has been resolved in the
defendant’s favor in a prior prosecution. Ashe v. Swenson, 397
U.S. 436, 443 (1970). Furthermore, “the protection of the
Double Jeopardy Clause by its terms applies only if there has
been some event, such as an acquittal, which terminates the
original jeopardy.” Richardson, 468 U.S. at 325. We consider
whether any of these three interrelated doctrines bars Wil-
son’s retrial on felony murder charges.

A.     The Same Offense Analysis

   [17] To determine whether two offenses are the “same” for
double jeopardy purposes, a court must determine “whether
each offense contains an element not contained in the other;
if not, they are the ‘same offense’ and double jeopardy bars
additional punishment and successive prosecution.” United
States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger
v. United States, 284 U.S. 299, 304 (1932)). Conversely,
“[d]ouble jeopardy is not implicated so long as each violation
requires proof of an element which the other does not.”
United States v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir.
2003) (citation omitted). “If each [offense] requires proof of
a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to
establish the crimes.” Ianelli v. United States, 420 U.S. 770,
785-86 n.17 (1975).

   [18] Applying this test, we conclude that, as defined under
Oregon law, felony murder is not the same offense as inten-
tional murder, the crime of which Wilson was acquitted. Sec-
tion 163.115(1)(a) of the Oregon Revised Statutes
straightforwardly states that “criminal homicide constitutes
                     WILSON v. BELLEQUE                   1313
murder when it is committed intentionally.” By contrast, in
defining felony murder, Oregon law does not require the
defendant to intentionally cause death. Indeed, in cases in
which a defendant commits the underlying felony with the
assistance of another person, the statute does not require the
defendant to have personally killed the victim at all. See OR.
REV. STAT. § 163.115(1)(b). Furthermore, the crime of felony
murder requires that the murder be committed “in the course
of and in furtherance of” one of several statutorily enumerated
felonies. OR. REV. STAT. § 163.115(1)(b). This requirement
does not apply to intentional murder. See OR. REV. STAT.
§ 163.115(1)(a).

   Wilson thus does not squarely address whether felony mur-
der and intentional murder are the same offense under the
Blockburger test. He argues, however, that Oregon law speci-
fies that all forms of homicide are merely alternative theories
of the same crime. Wilson thus claims that, notwithstanding
the different elements of the two offenses, they must be
regarded as the same for double jeopardy purposes.

   As a threshold matter, we think Wilson mischaracterizes
Oregon law. The Oregon decisions upon which Wilson relies
merely hold that multiple convictions for murder merge into
the most serious offense. See, e.g., State v. Tiner, 135 P.3d
305, 314 (Or. 2006) (holding that trial court erred in failing
to merge the defendant’s intentional murder conviction into
one of his two convictions for aggravated murder); State v.
Walraven, 167 P.3d 1003, 1008 (Or. Ct. App. 2007) (holding
that conviction for felony murder merged with conviction of
aggravated murder of the same victim). The cases do not sug-
gest that an acquittal on one charge bars retrial on either an
offense with different elements or on a lesser included offense
on which a previous jury deadlocked. To the contrary, the
Oregon Court of Appeals has expressly held that an acquittal
on a greater, charged offense does not preclude retrial on a
lesser-included offense that was submitted to the jury but on
which the jury did not reach a verdict. See State v. Perks, 847
1314                   WILSON v. BELLEQUE
P.2d 866, 868 (Or. Ct. App. 1993). There is no convincing
evidence that the Oregon Supreme Court would rule differ-
ently. See Munson v. Dell Taco, Inc., 522 F.3d 997, 1002 (9th
Cir. 2008).

   Even if we accepted Wilson’s description of Oregon law,
however, the Blockburger test “emphasizes the elements of
the two crimes,” Brown, 432 U.S. at 166, not the particulari-
ties of a state statutory classification scheme. If, contrary to
our interpretation, the Oregon courts conclude on remand that
Wilson’s analysis of Oregon law is accurate, they are obvi-
ously free to grant him the relief that he seeks. It is not our
place to do so on federal habeas review.

B.     Collateral Estoppel

   “Collateral estoppel, or issue preclusion, ‘means simply
that when an issue of ultimate fact has once been determined
by a valid and final judgment that issue cannot again be liti-
gated between the same parties in any future lawsuit.’ ” San-
tamaria v. Horsley, 133 F.3d 1242, 1244-45 (9th Cir. 1998)
(quoting Ashe, 397 U.S. at 443). In a criminal case, collateral
estoppel precludes the state from bringing a charge when a
previous “jury resolve[d], in a manner adverse to the govern-
ment, an issue that the government would be required to
prove in order to obtain a . . . conviction at the second trial.”
United States v. Castillo-Basa, 483 F.3d 890, 899 (9th Cir.
2007).

   In evaluating collateral estoppel claims, we follow a three
step process. First, we identify the issues in the two actions
to determine whether they are sufficiently material and similar
to justify invoking the doctrine; second, we examine the
record in the prior case to determine whether the similar issue
was litigated; third, we examine the record of the prior pro-
ceeding to determine whether the issue was necessarily
decided in the first case. Id. A criminal defendant invoking
collateral estoppel bears the burden of proving “that the issue
                      WILSON v. BELLEQUE                    1315
whose relitigation he seeks to foreclose was actually decided
in his favor” in the prior case, Dowling v. United States, 493
U.S. 342, 350 (1990), and if this burden is not met, “preclu-
sive effect must be denied,” United States v. Aguilar-
Aranceta, 957 F.2d 18, 23 (1st Cir. 1992).

   [19] In this case, Wilson’s acquittal on intentional murder
charges necessarily demonstrates only that the jury was not
convinced that Wilson personally and intentionally caused the
victim’s death; the verdict simply does not address whether
the victim’s death was caused by a person “in the course of
and in furtherance of” a statutorily enumerated felony of
which Wilson was a participant. Indeed, the jury could not
have decided the issue of whether Wilson was guilty of a
predicate felony in Wilson’s favor because Wilson’s convic-
tions on first and second degree kidnapping charges in his
1993 trial have never been overturned, and the trial judge thus
properly instructed the jury at his 2000 trial that they could
“not question the facts of those charges.” The issues necessar-
ily decided by the jury in Wilson’s 2000 trial are thus not suf-
ficiently similar to those that would be at issue in a future
felony murder prosecution to justify invoking the doctrine of
collateral estoppel.

C.   Termination of Jeopardy

   It is well-established that retrial following a hung jury does
not constitute double jeopardy. Richardson, 468 U.S. at 324-
26; United States v. James, 109 F.3d 597, 599-600 (9th Cir.
1997); United States v. Seley, 957 F.2d 717, 719-20 (9th Cir.
1992) (“As a general principle, retrials following hung juries
do not cause double jeopardy because the failure of the jury
to reach a verdict means that jeopardy has not yet terminat-
ed.”); United States v. Gooday, 714 F.2d 80, 83 (9th Cir.
1983) (“When a trial ends as a result of the jury being unable
to reach a unanimous verdict, the Double Jeopardy Clause of
the Fifth Amendment does not bar retrial.”).
1316                  WILSON v. BELLEQUE
   Moreover, we have held that when greater and lesser
included offenses are charged in one indictment and tried in
the same case, termination of jeopardy on the greater charges
by acquittal does not bar retrial on lesser included offenses on
which the same jury did not reach a verdict. See, e.g., Goo-
day, 714 F.2d at 83 (“Gooday’s acquittal on the indictment’s
first-degree murder count does not preclude retrial on the
three lesser included offenses on which the jury was instruct-
ed.”); Forsberg v. United States, 351 F.2d 242, 245, 248 (9th
Cir. 1965).

   [20] It is thus clear that neither Wilson’s acquittal on the
intentional murder charge nor the jury’s failure to reach a ver-
dict on counts one through three by itself terminated jeopardy
with respect to the felony murder charges on which the State
now seeks to retry him. Under Oregon law, these felony mur-
der charges were necessarily included under the aggravated
murder charges in counts one through three. Section 136.465
of the Oregon Revised Statutes states that “[i]n all cases, the
defendant may be found guilty of any crime the commission
of which is necessarily included in that with which the defen-
dant is charged in the accusatory instrument,” and the Oregon
Court of Appeals has confirmed that felony murder is a lesser
included offense to the crime of aggravated murder. See State
v. Bockorny, 866 P.2d 1230, 1237 (Or. App. Ct. 1993). At
Wilson’s 2000 trial, the trial court properly instructed the jury
on these lesser included charges and Wilson did not object to
the jury’s consideration of them. Thus, whether the disposi-
tion of counts one through three at Wilson’s 2000 trial is char-
acterized as a mistrial resulting from a hung jury (because of
the jury’s failure to reach a verdict on those specific charges)
or deemed an acquittal (because of our interpretation of the
jury’s acquittal on the intentional murder charge in Wilson I),
our precedent makes clear that jeopardy did not terminate
with respect to the felony murder charges that were necessar-
ily included under the aggravated murder charges in counts
one through three and submitted to the jury in Wilson’s 2000
trial.
                           WILSON v. BELLEQUE                           1317
   In response to this line of cases, Wilson points out that the
jury in his 2000 trial was prohibited from considering the fel-
ony murder charges by the acquittal-first instruction. He thus
argues that this case presents a situation unlike that where a
jury considers the charges at issue and deadlocks, and the trial
court’s declaration of a mistrial under the circumstances here
bars his retrial.4 We disagree.

  In support of his argument, Wilson contends that the trial
court’s mistrial order was attributable to the prosecution’s
conduct, and hence not the result of manifest necessity. How-
ever, Wilson does not assert that he objected to the trial
  4
    Wilson also asserts that the use of the acquittal-first instruction at his
2000 trial violated the Ex Post Facto Clause because it was unlawful under
Oregon law at the time of the alleged crime. We do not understand Wilson
to be arguing here that he is immunized from retrial merely because use
of the acquittal-first instruction supposedly violated the Ex Post Facto
Clause. Such a claim would fall outside the certificate of appealability we
granted Wilson in this case and, in any event, the proper remedy would
likely be retrial without the offending instruction. Rather, Wilson appears
to argue that the unconstitutional character of the instruction as applied to
him confirms his previous contention that the mistrial was attributable to
wrongful conduct by the State, and thus not prompted by manifest neces-
sity. As noted below, however, we conclude that (1) Wilson consented to
the mistrial and the manifest necessity standard thus does not apply, and
(2) even assuming that the manifest necessity standard did apply, it was
met here. We thus do not see how Wilson’s ex post facto argument is rele-
vant to the double jeopardy inquiry.
   In any event, the Supreme Court has explained that an ex post facto vio-
lation occurs when a “statute . . . punishes as a crime an act previously
committed, which was innocent when done; which makes more burden-
some the punishment for a crime, after its commission, or which deprives
one charged with crime of any defense available according to law at the
time when the act was committed.” Collins v. Youngblood, 497 U.S. 37,
42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)). In Car-
mell v. Texas, 529 U.S. 513 (2000), the Court added that a law which “al-
ters the legal rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence, in
order to convict the offender” also violates the Clause. Id. at 530, 534-35.
The acquittal-first instruction does not even arguably fall into any of these
categories.
1318                  WILSON v. BELLEQUE
court’s mistrial order and nothing in the record reflects that
such an objection was ever made. The Supreme Court has
stated that the manifest necessity standard is limited to those
situations “[w]here the trial is terminated over the objection
of the defendant.” Oregon v. Kennedy, 456 U.S. 667, 672
(1982). Though the Supreme Court’s decision in Kennedy
dealt with a mistrial requested by the defendant, other cases
have made clear that application of the manifest necessity
standard is equally inappropriate where the trial court declares
a mistrial with the defendant’s express or implied consent.
See, e.g., United States v. Dinitz, 424 U.S. 600, 608 (1976)
(“The distinction between mistrials declared by the court [s]ua
sponte and mistrials granted at the defendant’s request or with
his consent is wholly consistent with the protections of the
Double Jeopardy Clause.” (emphasis added)); United States v.
Smith, 621 F.2d 350, 351 (9th Cir. 1980) (“An implied con-
sent to a mistrial, like an express consent, removes any double
jeopardy bar to retrial.”); cf. Weston v. Kernan, 50 F.3d 633,
637 (9th Cir. 1995) (holding that defendant did not consent to
mistrial where defense counsel repeatedly objected prior to
the mistrial order); United States v. Bates, 917 F.2d 388, 393
(9th Cir. 1990) (holding that no consent existed when defen-
dant had no opportunity to object prior to the mistrial order).

   In addition, Oregon law provides that “[i]f the jury is
unable to reach a decision on the original charge, the state and
defendant may stipulate that the jury may consider any lesser
included offense.” OR. REV. STAT. § 136.460(4). Wilson does
not assert, and nothing in the record indicates, that he asked
the trial court or the prosecution to allow the jury to consider
the lesser included felony murder charges prior to the trial
court’s declaration of a mistrial. When this point is coupled
with his failure to object, it is clear that Wilson consented to
the mistrial.

  [21] Kennedy makes clear that retrial after a mistrial
declared with the defendant’s consent violates the Double
Jeopardy Clause only if that consent was procured by pro-
                          WILSON v. BELLEQUE                           1319
secutorial conduct that was “intended to ‘goad’ the defendant
into moving for a mistrial.” Kennedy, 456 U.S. at 676. There
is no evidence that the prosecution supported the acquittal-
first instruction for this reason. At most, Wilson suggests that
the prosecution’s advocacy of the acquittal-first instruction
may have been a strategic decision. Even if this were true,
however, strategy is not misconduct, let alone misconduct
purposefully aimed at depriving Wilson of his double jeop-
ardy rights. Indeed, the trial court’s use of the acquittal-first
instruction was not even attributable to the prosecution’s con-
duct, because Oregon law affirmatively required this instruc-
tion. See OR. REV. STAT. § 136.460(2).5 The trial court’s
declaration of a mistrial on these charges thus does not bar the
State from retrying Wilson for felony murder.

                                    IV.

   The judgment of the district court is affirmed.

   AFFIRMED.
  5
    We also note that it is fundamentally illogical to construe the prosecu-
tion’s advocacy of the acquittal-first instruction as motivated by strategic
considerations. Wilson suggests that the state wished to avoid having the
jury consider the felony murder charges under counts one through three,
but this contention does not make sense. As the State points out, the jury’s
failure to reach a verdict on the aggravated murder charges in counts one
through three makes it logically impossible that it could have acquitted
Wilson of the lesser-included felony murder charges.
   This point also illustrates that, even if Wilson had not consented to the
trial court’s declaration of a mistrial, manifest necessity plainly supported
the trial court’s action. The jury’s failure to acquit Wilson on the aggra-
vated murder charges in counts one through three, necessarily indicates
that it could not have acquitted him of the lesser-included felony murder
charges either. The jury’s consideration of these charges could only have
resulted in either deadlock or conviction. It would be ironic to conclude
that the Double Jeopardy Clause embodies a defendant’s right to have a
jury convict him of certain charges.
