                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                       PUBLISH                    July 7, 2015
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                               TENTH CIRCUIT



    KEYNON MICHAEL OWENS,

             Petitioner - Appellant,
    v.                                                 No. 13-5066
    ANITA TRAMMELL, * Warden,

             Respondent - Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF OKLAHOMA
                  (D.C. NO. 4:12-CV-00117-CVE-FHM)


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.

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.


Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.




*
  Pursuant to Federal Rule of appellate Procedure 43(c)(2), Anita Trammell is
substituted for Mike Addison.
      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).




                                         -2-
      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.




                                          -3-
      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.

                                         -4-
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;

                                         -5-
                     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 37 2 second element to be

the whole robbery of both Javier and Jesus[?] We are making the Instruction 47 3

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.

                                          -6-
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
              First degree felony murder of                   Guilty
              Javier with the predicate felony
     2        specified as the robbery of
              Javier with a dangerous weapon
     3        Shooting Javier with intent to                Not guilty
              kill
     4        Robbery with a dangerous                       Not guilty
              weapon of Javier
     5        Robbery with a dangerous                        Guilty
              weapon of Jesus




                                         -7-
             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,

                                         -8-
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.

                                          -9-
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).

                                        -10-
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).

                                         -11-
                                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.

                                       -12-
      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.”);

                                         -13-
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

                                         -14-
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.




                                         -15-
             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,


                                        -16-
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,”

                                        -17-
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

                                           -18-
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,

                                         -19-
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.




                                         -20-
             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.




                                         -21-
       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.”).

                                        -22-
      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.

                                         -23-
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

                                         -24-
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

                                           -25-
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

                                         -26-
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

                                             -27-
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)).

                                        -28-
      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.

                                          -29-
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

                                         -30-
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 unreasonable-
application 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).

                                         -31-
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...)

                                          -32-
      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).

                                         -33-
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

                                         -34-
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.

                                III. Conclusion

       Owens has not met his burden of showing that one of § 2254(d)’s

exceptions applies. Applying AEDPA deference, we cannot grant relief.

AFFIRMED.




                                        -35-
