                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2011
                      UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                           FOR THE NINTH CIRCUIT                         U .S. C O U R T OF APPE ALS




JAMES EARL FOX,                                  No. 09-15834

                Petitioner - Appellant,          D.C. No. 4:07-cv-00634-RCC

  v.
                                                 MEMORANDUM *
CHARLES L. RYAN; STATE OF
ARIZONA ATTORNEY GENERAL,

                Respondents - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Raner C. Collins, District Judge, Presiding

                       Argued and Submitted December 5, 2011
                              San Francisco, California

Before: TROTT and BEA, Circuit Judges, and PALLMEYER, District Judge.**

       Petitioner-Appellant James Fox appeals the district court’s denial of habeas

relief under 28 U.S.C. § 2254. We affirm.1



            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
           **
             The Honorable Rebecca R. Pallmeyer, District Judge for the U.S.
District Court for Northern Illinois, sitting by designation.
       1
        Because the parties are familiar with the facts of the case, we repeat them
here only as necessary to explain our decision.
      Fox turned down a favorable plea deal and, after he was convicted by a jury

and sentenced to 27 years in custody, moved for post-conviction relief, arguing

that his trial counsel was ineffective for failing to warn him that his sentences on

the multiple counts could be consecutive. What occurred following the state

court’s grant of post-conviction relief was unusual. The post-conviction court

vacated Fox’s sentence of 15.75 years for trafficking in stolen property and 11.25

years for attempted trafficking, both sentences to run consecutively—but the court

did not vacate his convictions following a jury trial. The court then conducted a

plea colloquy where Fox pleaded guilty to a count of which he had already been

convicted, which conviction was still valid. When the state post-conviction court

subsequently realized it made a mistake, it vacated the “second” guilty plea and

resentenced Fox on the original convictions so that the 15.75 year term and the

11.25 year term would run concurrently. The end result of the court’s actions is

that Fox’s total sentence was reduced from 27 years to 15.75 years.

      The state appellate court’s determination that the Double Jeopardy Clause

was not violated by the court’s sua sponte vacatur of the “second,” accepted guilty

plea, followed by its resentencing Fox pursuant to the original convictions, was

reasonable. See 28 U.S.C. § 2254(d)(1). There is currently a split of authority in

the circuits as to whether jeopardy automatically attaches in every case


                                           2
immediately upon a court’s acceptance of a guilty plea. See United States v.

Patterson, 406 F.3d 1095, 1100 (9th Cir. 2005) (Kozinski, C.J., dissenting from

denial of rehearing en banc) (discussing circuit split on this issue). As the Supreme

Court has told us, divergent treatment by different circuit courts may “[r]eflect[]

the lack of guidance from [the Supreme] Court.” Carey v. Musladin, 549 U.S. 70,

76 (2006). That is the case here: there is no clearly established federal law as

established by the Supreme Court on this issue. See 28 U.S.C. § 2254(d)(1).

Further, the reinstatement of convictions on charges of which Fox had already been

found guilty by a jury beyond a reasonable doubt, followed ultimately by a

reduction in his overall sentence, does not implicate any of the purposes of the

Double Jeopardy Clause as stated in Ohio v. Johnson, 467 U.S. 493, 501 (1984).

The district court properly declined to grant habeas on this issue.2

      AFFIRMED.




      2
        We decline to consider the uncertified issue of whether the state courts
applied the proper remedy for ineffective assistance of counsel.

                                           3
