                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ROBERT D. LEMKE,                                  No. 11-15960
              Petitioner-Appellant,
                                                     D.C. No.
                     v.                           2:09-cv-01059-
                                                       DGC
 CHARLES L. RYAN and ATTORNEY
 GENERAL OF THE STATE OF
 ARIZONA,                                            OPINION
             Respondents-Appellees.


        Appeal from the United States District Court
                 for the District of Arizona
        David G. Campbell, District Judge, Presiding

                   Argued and Submitted
               March 6, 2013—Tucson, Arizona

                       Filed June 19, 2013

    Before: William C. Canby, Jr. and N. Randy Smith,
    Circuit Judges, and Larry A. Burns, District Judge.*

                 Opinion by Judge Canby;
  Partial Concurrence and Partial Dissent by Judge Burns


  *
    The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2                         LEMKE V. RYAN

                           SUMMARY**


                          Habeas Corpus

   The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition based on the Double
Jeopardy Clause.

    Petitioner was charged with armed robbery, felony
murder predicated on armed robbery, and conspiracy to
commit armed robbery. The jury returned guilty verdicts on
the lesser included offenses of theft and conspiracy to commit
theft, but was unable to reach a verdict on the felony murder
charge. After unsuccessfully opposing his retrial on the
remaining charge, petitioner pleaded guilty in exchange for
a concurrent sentence.

    The panel first held that petitioner did not waive his
Double Jeopardy claim merely by entering a guilty plea, and
was not convinced that he waived it in the broad waiver
clause of his plea agreement.

    The panel next determined that the prosecution of
petitioner for armed robbery felony murder after his implied
acquittal of armed robbery was a prosecution for the “same
offense,” but was not a “successive” prosecution for Double
Jeopardy purposes because original jeopardy had not
terminated for the count for which the jury failed to reach a
verdict. Consequently, the state court’s rejection of


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      LEMKE V. RYAN                         3

petitioner’s claim was neither contrary to nor an unreasonable
application of clearly established federal law.

    The panel also held that retrial was not barred by the
collateral estoppel doctrine, because petitioner had not
demonstrated that the jury “necessarily decided” that he had
not committed armed robbery when it failed to return a
verdict on that count.

    District Judge Burns concurred in part and dissented in
part. He did not agree that petitioner could pursue his Double
Jeopardy claim after signing the plea agreement, but he
agreed that the state court’s rejection of that claim was
neither contrary to nor an unreasonable application of clearly
established federal law.


                        COUNSEL

Golnoosh Farzaneh (argued), Assistant Federal Public
Defender, and Keith J. Hilzendeger, Research & Writing
Specialist, Federal Public Defenders’ Office, Phoenix,
Arizona, for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General; Kent
E. Cattani, Division Chief Counsel; Joseph T. Maziarz,
Section Chief Counsel, Phoenix, Arizona, for Respondents-
Appellees.
4                      LEMKE V. RYAN

                          OPINION

CANBY, Senior Circuit Judge:

    Petitioner Robert D. Lemke appeals the district court’s
denial of his petition for a writ of habeas corpus brought
under 28 U.S.C. § 2254. Lemke contends that subjecting him
to retrial for felony murder violated the Double Jeopardy
Clause because a jury earlier had impliedly acquitted him of
the robbery underlying the felony murder charge. We
conclude that the Arizona Court of Appeals’ holding that
double jeopardy did not bar Lemke’s retrial was not “contrary
to, or . . . an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Accordingly, we
affirm.

                      BACKGROUND

    In August 2002, Charles Chance was robbed and shot
once in the chest. He died at the scene. Petitioner was then
indicted in Arizona state court on three counts stemming from
that incident: (1) felony murder predicated on armed robbery;
(2) armed robbery; and (3) conspiracy to commit armed
robbery.

    At trial, the court instructed the jury that the armed
robbery charge in Count II included the lesser offense of theft
and, similarly, that the charge of conspiracy to commit armed
robbery in Count III included the lesser charge of conspiracy
to commit theft. In accordance with Arizona law, the trial
court also provided a LeBlanc instruction, which allowed the
jurors to consider a lesser included offense if, after reasonable
effort, they could not agree on the greater charged offense.
                       LEMKE V. RYAN                          5

State v. LeBlanc, 924 P.2d 441, 442 (Ariz. 1996). The jury
was not instructed on any lesser included offense for Count
I, felony murder.

    After seven days of deliberation, the jury returned guilty
verdicts on the lesser included offenses of theft and
conspiracy to commit theft. The jury left blank the verdict
forms for armed robbery and conspiracy to commit armed
robbery. As to felony murder predicated on armed robbery,
the jury reported that it could not reach a verdict. The court
declared a mistrial on the felony murder count and sentenced
Lemke to a total of twenty-seven years’ imprisonment for the
theft and conspiracy convictions.

    The State then sought retrial on the felony murder count.
Lemke moved for dismissal, arguing that double jeopardy
barred his retrial for felony murder predicated on armed
robbery. The trial court denied Lemke’s motion, the Arizona
Court of Appeals rejected Lemke’s double jeopardy claim in
a reasoned decision, and the Arizona Supreme Court denied
review. Thereafter, Lemke pleaded guilty to felony murder
in exchange for a concurrent life sentence with the possibility
of parole after 25 years.

    Lemke then filed a pro se 28 U.S.C. § 2254 petition in
federal district court, reasserting his argument that the Double
Jeopardy Clause barred his retrial for felony murder. The
district court denied the petition and declined to issue a
certificate of appealability. Lemke appealed, and this court
granted a certificate of appealability and appointed counsel.
6                     LEMKE V. RYAN

                       DISCUSSION

    We review de novo the district court’s denial of a habeas
petition. Ferrizz v. Giurbino, 432 F.3d 990, 992 (9th Cir.
2005). Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), we may grant Lemke’s petition for habeas
relief only if the decision of the Arizona Court of Appeals
“was contrary to federal law then clearly established in the
holdings of [the Supreme] Court; or . . . involved an
unreasonable application of such law.” Harrington v.
Richter, 131 S. Ct. 770, 785 (2011) (internal quotation marks
and citations omitted). Because the Arizona Supreme Court
denied review in a summary order, we look through that order
to the last reasoned state court decision. See Ylst v.
Nunnemaker, 501 U.S. 797, 806 (1991).

A. Waiver

     As an initial matter, we address two issues of waiver. The
first is whether Lemke’s express waiver of appeal in his plea
agreement also waived his right to bring this petition for
collateral relief. The government does not argue that
Lemke’s express waiver of appeal waived his right to bring
a collateral attack under 28 U.S.C. § 2254, but the partial
dissent here does. Our circuit precedent makes clear,
however, that a waiver of collateral attack must be express,
and that a plain waiver of appeal does not suffice. See United
States v. Benboe, 157 F.3d 1181, 1183 (9th Cir. 1998) (“We
have held that even where a plea agreement specifies that no
appeal will be taken, it does not waive the right to bring a
§ 2255 motion unless it does so expressly.”); United States v.
Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (“A plea agreement
does not waive the right to bring a § 2255 motion unless it
does so expressly.”).
                        LEMKE V. RYAN                            7

    Lemke’s plea agreement does not expressly waive his
right of collateral attack. His plea agreement states:

        [T]he Defendant hereby waives and gives up
        any and all motions, defenses, objections, or
        requests which he has made or raised, or
        could assert hereafter, to the court’s entry of
        judgment against him and the imposition of a
        sentence upon him consistent with this
        agreement. By entering this agreement, the
        Defendant further waives and gives up the
        right to appeal.

This provision does not mention collateral attack, and its
wording is most reasonably read as referring to post-trial
activity in the trial court, an interpretation that is bolstered by
the addition of a separate sentence waiving Lemke’s right of
appeal. Lemke’s § 2254 petition is not such a contemplated
“motion[], defense[], objection[], or request[].” Indeed, the
advice given by the trial judge at the change of plea hearing
makes clear that Lemke was not waiving his right of
collateral attack in the state court. After informing Lemke
that he was waiving his right of appeal, the judge stated:

        Under the plea agreement, you have to file
        what is called a petition for post-conviction
        relief where if there were any mistakes by
        your attorneys, by the State, by the Courts or
        any other irregularity that requires redress
        with the Courts, you have to file that petition
        in writing with the sentencing judge within 90
        days of your sentence or you might lose that
        right.
8                     LEMKE V. RYAN

It seems apparent, therefore, that neither the plea agreement
nor Lemke’s likely understanding of it waived his right to
bring this collateral action under § 2254.

    The second waiver issue is whether Lemke, by his plea or
in the quoted portion of his plea agreement, waived his claim
of double jeopardy as a substantive matter. Because the state
courts did not consider this issue, our review is de novo. See
Scott v. Schriro, 567 F.3d 573, 584–85 (9th Cir. 2009) (noting
that AEDPA deference does not apply when “there is no state
court decision on this issue to which to accord deference”
(internal quotation marks and citation omitted)).

    The general rule is that “‘a voluntary and intelligent plea
of guilty made by an accused person, who has been advised
by competent counsel, may not be collaterally attacked.’”
United States v. Broce, 488 U.S. 563, 574 (1989) (quoting
Mabry v. Johnson, 467 U.S. 504, 508 (1984)). This rule is
predicated on the idea that a valid guilty plea “removes the
issue of factual guilt from the case.” Menna v. New York,
423 U.S. 61, 62 n.2 (1975). Accordingly, Lemke’s guilty
plea to felony murder waived constitutional claims that
became irrelevant upon reliable establishment of factual guilt
by his plea. Id.

    An exception to this general rule, however, is that a
defendant’s “guilty plea does not foreclose a subsequent
challenge where the defendant challenges the right not to be
haled into court at all.” Broce, 488 U.S. at 574–75 (internal
quotation marks omitted). Lemke’s plea fits into this narrow
exception where he argues that the charge to which he
pleaded guilty is one “which the State may not
constitutionally prosecute,” id. at 575 (internal quotation
marks and citation omitted), and where his claim does not
                       LEMKE V. RYAN                          9

rely on evidence outside the “indictments and the existing
record,” id. at 576. In arguing that his retrial for felony
murder violated double jeopardy, Lemke does not challenge
his factual guilt, but instead asserts that the State was
constitutionally barred from prosecuting him for felony
murder. See United States v. Garcia-Valenzuela, 232 F.3d
1003, 1006 (9th Cir. 2000) (“The Court in Menna drew a
fundamental distinction between post-plea constitutional
challenges that implicated the factual guilt of the defendant,
and those that were independent of factual guilt.”).
Moreover, as previously mentioned, Lemke relies only on the
existing record and does not “seek further proceedings at
which to expand the record with new evidence.” Broce,
488 U.S. at 575. We may resolve Lemke’s claim solely by
reviewing the face of the indictment, the guilty plea, and the
judgments entered against Lemke “without any need to
venture beyond [the existing] record.” Id. Thus, Lemke’s
double jeopardy claim is not waived merely by his entry of a
plea of guilty.

    A more difficult issue is whether Lemke waived his
double jeopardy defense entirely in the clause of the plea
agreement in which Lemke waives “all motions, defenses,
objections, or requests which he has made or raised, or could
assert hereafter, to the court’s entry of judgment against him.”
Although this language is broad, it does not refer specifically
to double jeopardy or any other particular subject matter.
And for reasons that we have explained, the waiver appears
to be limited to matters arising in the trial court apart from
any collateral attack. We construe any ambiguity in a plea
agreement against the drafter – here, the State. See United
States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.
2006). Lemke’s claim of double jeopardy raised by this
appeal thus may not fall within the “literal terms” of his plea
10                     LEMKE V. RYAN

agreement waiver. United States v. Leniear, 574 F.3d 668,
672 (9th Cir. 2009) (internal quotation marks and citation
omitted).

    In arguing that Lemke’s double jeopardy claim is waived,
the partial dissent here relies on Ricketts v. Adamson,
483 U.S. 1 (1987). In that case, Adamson had entered a plea
of guilty to second-degree murder that required him to testify
against his co-conspirators. The agreement provided that
“[s]hould the defendant refuse to testify . . . then this entire
agreement is null and void and the original charge [of first-
degree murder] will be automatically reinstated.” Id. at 4. It
further specified that “[i]n the event that this agreement
becomes null and void, then the parties shall be returned to
the positions they were in before this agreement.” Id. at 9.

    Adamson testified and was sentenced for second-degree
murder pursuant to the agreement. The convictions of his co-
conspirators were reversed on appeal, however, and Adamson
refused to testify against them at their retrial. The court then
vacated his conviction and reinstated the first-degree murder
charge. Adamson was convicted and sentenced to death. The
Supreme Court upheld the conviction, rejecting Adamson’s
double jeopardy claim. The Court stated:

       The terms of the agreement could not be
       clearer: In the event of respondent’s breach
       occasioned by a refusal to testify, the parties
       would be returned to the status quo ante, in
       which case respondent would have no double
       jeopardy defense to waive.           And, an
       agreement specifying that charges may be
       reinstated given certain circumstances is, at
       least under the provisions of this plea
                       LEMKE V. RYAN                       11

       agreement, precisely equivalent to an
       agreement waiving a double jeopardy defense.

Id. at 10 (emphasis in original).

    Adamson certainly stands for the proposition that a double
jeopardy defense can be waived, but it is sufficiently
distinguishable so that it does not necessarily compel a
conclusion that Lemke has waived his double jeopardy claim.
Adamson’s waiver was specific to his situation and spelled
out exactly what would happen to him if he refused to testify.
Lemke’s waiver was not similarly specific, and his
underlying prior adjudication was not vacated because of a
breach of a plea agreement or for any other reason.

    We are not convinced, therefore, that Adamson or any
other authority supports a conclusion that Lemke has waived
his double jeopardy defense. We need not resolve this
question definitively, however, because we conclude, for the
reasons that follow, that Lemke’s double jeopardy claim fails
on its merits to meet the requirements of § 2254(d)(1). The
contention that he waived that claim is not a jurisdictional
issue, and there is no compelling reason why we cannot
proceed to the merits of his appeal without conclusively
resolving the waiver issue. See United States v. Jacobo
Castillo, 496 F.3d 947, 954–57 (9th Cir. 2007) (en banc)
(holding that a plea agreement waiver of appeal does not
deprive appellate court of statutory jurisdiction).

B. Double Jeopardy

   The Double Jeopardy Clause provides 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. The claim
12                    LEMKE V. RYAN

preclusion aspect of the Double Jeopardy Clause bars
successive prosecutions for charges that are, for double
jeopardy purposes, the same offense. United States v. Dixon,
509 U.S. 688, 696–98 (1993). The issue preclusion, or
collateral estoppel, aspect of double jeopardy “precludes the
Government from relitigating any issue that was necessarily
decided by a jury’s acquittal in a prior trial.” Yeager v.
United States, 557 U.S. 110, 119 (2009).

   The Arizona Court of Appeals held that neither aspect of
double jeopardy barred Lemke’s retrial for felony murder.
Lemke v. Rayes, 141 P.3d 407, 416 (Ariz. Ct. App. 2006).
We now consider whether that conclusion constituted an
unreasonable application of clearly established Supreme
Court precedent, and we hold that it did not.

     1. Double Jeopardy Claim Preclusion

    The Supreme Court has held that the Double Jeopardy
Clause “protects against successive prosecutions for the same
offense after acquittal or conviction.” Monge v. California,
524 U.S. 721, 727–28 (1998). We conclude that, under this
formulation and others put forth by the Supreme Court, the
prosecution of Lemke for armed robbery felony murder after
his implied acquittal of armed robbery was indeed
prosecution for the “same offense.” Supreme Court
precedent, however, does not clearly establish that, under the
circumstances of his case, the continued prosecution was
“successive” and therefore prohibited.

        a. The “Same Offense” test

    Two charges constitute the “same offense” for double
jeopardy purposes unless “each provision requires proof of a
                          LEMKE V. RYAN                               13

fact which the other does not.” Blockburger v. United States,
284 U.S. 299, 304 (1932).

    The State admits, and the Arizona Court of Appeals held,
that armed robbery and felony murder predicated on armed
robbery are the “same offense” under the Blockburger test
because the felony murder includes all of the elements of
armed robbery. See, e.g., Harris v. Oklahoma, 433 U.S. 682,
682–83 (1977) (holding that, for double jeopardy purposes,
robbery with a firearm is the same offense as felony murder
predicated on armed robbery); Whalen v. United States,
445 U.S. 684, 693–94 (1980) (noting that rape is a “lesser
included” offense of felony murder predicated on rape and is
the same offense for double jeopardy purposes); United States
v. James, 556 F.3d 1062, 1067 (9th Cir. 2009) (analyzing an
Arizona state conviction and accepting that robbery is a lesser
included offense of felony murder).1

    The Arizona Court of Appeals also assumed that, by
convicting Lemke of theft and remaining silent as to the
charge of armed robbery, the jury impliedly acquitted Lemke
of armed robbery. See Green v. United States, 355 U.S. 184,
190–91 (1957) (holding that when a jury convicts a defendant
on a lesser included charge and remains silent as to the
greater inclusive charge, it impliedly acquits the defendant of
the greater charge); see also Brazzel v. Washington, 491 F.3d
976, 981 (9th Cir. 2007) (“An implied acquittal occurs when
a jury returns a guilty verdict as to a lesser included or lesser
alternate charge, but remains silent as to other charges,



 1
   Moreover, because theft is a lesser included offense of robbery, theft
and felony murder predicated on robbery are also the “same offense” for
double jeopardy purposes.
14                          LEMKE V. RYAN

without announcing any signs of hopeless deadlock.”).2 The
Arizona Court of Appeals was thus confronted with a
situation in which the jury had convicted the defendant of
theft, impliedly acquitted him of armed robbery, and
deadlocked on felony murder, and all three of those charges
constituted the “same offense” for double jeopardy purposes.

    Lemke argues that, once the Arizona Court of Appeals
reached this point in its analysis, Blockburger compelled the
court to hold that double jeopardy barred his retrial for felony
murder. His argument is attractively simple. Under
Blockburger, the offenses for which he was convicted (theft)
and impliedly acquitted (armed robbery) are the “same
offense” as felony murder. Accordingly, the State could not
place him twice in jeopardy for the “same offense” by
retrying him on the felony murder charge.

    The Arizona Court of Appeals, however, did not follow
the straightforward approach that Lemke advocates. Citing
Richardson v. United States, 468 U.S. 317, 325 (1984), the
court noted that the protections afforded by the Double
Jeopardy Clause apply only after original jeopardy has
terminated, and jeopardy “continues” on counts for which the
jury has failed to reach a verdict. Lemke, 141 P.3d at 414.


  2
    The trial court’s provision of a LeBlanc instruction, which allowed
jurors to consider the lesser offense if they could not agree as to the
greater offense, likely does not undermine the conclusion that the jury’s
silence on armed robbery constituted an implied acquittal. See Brazzel,
491 F.3d at 979 (treating the situation as an implied acquittal where the
jurors left blank the verdict form for the greater offense and convicted on
the lesser offense, even though the jury instructions included an “unable
to agree” instruction and provided that the jurors “must” fill out the verdict
form if they unanimously agreed and were to leave it blank if they could
not agree).
                      LEMKE V. RYAN                         15

The Arizona Court of Appeals therefore held that, although
jeopardy had terminated as to the armed robbery count of the
indictment, it had never terminated as to the felony murder
count. Id. at 415. Thus, retrial for felony murder would not
expose Lemke to a successive prosecution or place him
“twice in jeopardy.” Id.

       b. “Successive” prosecution

    We cannot conclude that Supreme Court precedent
forecloses the result reached by the Arizona Court of
Appeals. Neither of the Supreme Court cases that Lemke
principally relies upon conclusively addresses his situation.
In Green v. United States, 355 U.S. 184 (1957), the defendant
was charged with arson and first degree murder by arson.
The jury found him guilty of arson and second degree
murder. On appeal, his second degree murder conviction was
reversed and his case was remanded for retrial. On remand
he was tried and convicted of first degree murder. The
Supreme Court held that the first degree murder conviction
was barred by the Double Jeopardy Clause because the first
jury implicitly acquitted him of that charge, and that jury had
been dismissed without Green’s consent, thus ending his
jeopardy on that charge. Id. at 190–91; accord, Price v.
Georgia, 398 U.S. 323, 329 (1970). Green is close to
Lemke’s case, but differs in that Lemke was not retried on the
same charge of which the jury had implicitly acquitted him,
and no event necessarily terminated his jeopardy on the hung-
jury charge of felony murder predicated on armed robbery.

   In Brown v. Ohio, 432 U.S. 161 (1977), the defendant had
been convicted of joyriding. He was later indicted and
convicted of auto theft arising from the same incident. The
Supreme Court held that the second conviction was barred by
16                     LEMKE V. RYAN

the Double Jeopardy Clause, but it is abundantly clear that the
separate, second prosecution was “successive” within the
meaning of the Double Jeopardy Clause.

    On the other hand, the Supreme Court in Richardson v.
United States, 468 U.S. at 325, permitted retrial of charges on
which a jury had been unable to agree, despite the
defendant’s argument that the evidence in his first trial had
been insufficient to convict him. In rejecting that argument,
the Court held that “the failure of the jury to reach a verdict
is not an event which terminates jeopardy.” Id. And in Ohio
v. Johnson, 467 U.S. 493 (1984), the Supreme Court held that
the defendant’s plea of guilty to lesser included offenses did
not foreclose an ensuing trial on the greater offense, noting
that the defendant’s “efforts were directed to separate
disposition of counts in the same indictment where no more
than one trial of the offenses charged was ever
contemplated.” Id. at 502. Finally, in Blueford v. Arkansas,
132 S. Ct. 2044, 2050–51 (2012), the Supreme Court
permitted retrial of capital charges after a jury was unable to
reach a verdict, even though the jury had reported itself as
unanimously against conviction on the capital charge; no
verdict had actually been entered.

    Although none of these cases perfectly matches Lemke’s
case, and although Green is perhaps the closest case to
Lemke’s, the mix of these Supreme Court cases does not
leave us with an impression that law clearly established by
the Supreme Court precluded Lemke’s being subjected to
retrial for felony murder – a charge of which he had not been
acquitted explicitly or implicitly. We have not been directed
to any Supreme Court decision that forecloses as a matter of
claim preclusion the retrial, in the same litigation, of a charge
                      LEMKE V. RYAN                         17

upon which the record shows that the jury was unable to
come to a verdict.

    Although the clearly established federal law required by
§ 2254(d)(1) must be found in Supreme Court, not circuit
court, decisions, we may examine our own precedent to see
whether we are bound by one of our decisions that “has
already held that the particular point in issue is clearly
established by Supreme Court precedent.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013). Such an examination
leads to somewhat contradictory results in this case.

    Wilson v. Czerniak, 355 F.3d 1151 (9th Cir. 2004),
provides strong support for Lemke’s position. There, the
petitioner had been indicted on a variety of charges, including
aggravated felony murder predicated on kidnapping,
intentional murder, and kidnapping. Id. at 1152. Felony
murder and intentional murder were charged in separate
counts. Id. at 1152. The jury convicted the petitioner of
kidnapping, acquitted him of intentional murder, and hung on
the aggravated felony murder charges. Id. We held that the
petitioner could not be retried for felony murder because he
had been acquitted of intentional murder, which, under
Blockburger, was the “same offense” as felony murder. In so
holding, we noted that “[w]ell-settled Supreme Court
precedent provides that a criminal defendant may not be
retried for a crime following an acquittal or conviction on a
lesser included or greater inclusive offense.” Id. at 1154.
Even though jeopardy had not terminated as to the hung
felony murder count, it had terminated as to the intentional
murder count, and intentional murder was a lesser included
offense of felony murder. Id. at 1155. Accordingly, “a retrial
for aggravated felony murder would subject Wilson twice to
jeopardy for the same offense.” Id. at 1156. Moreover, we
18                     LEMKE V. RYAN

distinguished Richardson on the ground that it involved
“separate and unrelated offenses and raised no Blockburger
issue.” Id. at 1155. Finally, we held that the state court had
unreasonably applied Supreme Court precedent in reaching
the contrary conclusion. Id. at 1156–57.

    Wilson presents a very close factual situation to this case,
but it is not precisely on point. Unlike the petitioner in
Wilson, Lemke was acquitted of a lesser-included charge
(armed robbery) only by implication arising from his
conviction of a sub-lesser-included charge (theft). Yet this
distinction is not really material for claim preclusion
purposes; double jeopardy may be shown by either a prior
acquittal or a prior conviction of the same offense. Id. at
1154. Moreover, all parties have accepted for purposes of
decision that Lemke’s implied acquittal for armed robbery
was effective, and that the State could not retry him for armed
robbery.

    Thus, were we faced only with the applicable Supreme
Court precedent and our interpretation of that precedent in
Wilson, we would likely consider ourselves bound by circuit
law to conclude that clearly established federal law as
determined by the Supreme Court barred Lemke’s retrial for
felony murder. But other cases decided by our circuit before
and after Wilson present insurmountable obstacles in the way
of such a conclusion.

    In Forsberg v. United States, 351 F.2d 242 (9th Cir.
1965), decided well before Wilson, the jury hung on a lesser
included offense and acquitted on a greater inclusive offense
charged in the same indictment. Relying on the fact that the
two charges were brought in the same indictment, we held
that the termination of jeopardy as to the greater inclusive
                          LEMKE V. RYAN                              19

offense did not bar retrial as to the lesser included offense.
Id. at 248.

     A year after our decision in Wilson, and largely
contradictory to it, we decided United States v. Jose, 425 F.3d
1237 (9th Cir. 2005). There, the defendants were initially
convicted of felony murder and lesser included robbery and
burglary charges, but their felony murder convictions were
reversed on appeal. Id. at 1239–40. Relying heavily on
Forsberg and without mentioning Wilson, we held that “final
convictions on the underlying predicate felonies do not
trigger double jeopardy protections against retrial of the
greater offense originally charged under the same indictment
in the same trial.” Id. at 1248 (emphasis in original). We
noted that “‘there is a difference between separate, successive
trials of greater and lesser offenses, and the different situation
in which both are tried together.’” Id. at 1242 (quoting
United States v. DeVincent, 632 F.2d 155, 158 (1st Cir.
1980)). We concluded that, “[i]n such a situation, the
government is not barred from retrying the defendant,
notwithstanding that jeopardy has terminated on the related
offense. And this is true even though the greater and lesser
offenses are the ‘same offense’ for purposes of double
jeopardy.” Id. at 1243–44 (internal citations omitted). We
rejected the defendants’ reliance on Green, noting that
“[t]heir theory would have made it impossible for the district
court to retry Green on the charge of second degree murder
even though this was the charge that formed the basis of his
reversed conviction.” Id. at 1245 (footnote omitted).3


 3
   This observation regarding Green is problematical in light of Green’s
unusual procedural posture. Green had obtained reversal of his second-
degree murder conviction on the ground that the jury should not have been
instructed on second-degree murder, so that it was possible that, without
20                         LEMKE V. RYAN

Accordingly, we held that retrial did not violate double
jeopardy.4

    It is almost impossible to reconcile Wilson and Jose and
satisfy our quest for binding circuit authority on whether
Lemke’s subjection to retrial for felony murder violated
clearly established federal law as determined by the Supreme
Court. The conflict between Wilson and Jose is sufficiently
severe that, if we were dealing with a direct appeal, we would
probably suggest en banc review to determine which case
provides the circuit law to govern the appeal of the double
jeopardy claim. This is not a direct appeal, however, and our
ultimate task is to determine whether Supreme Court
precedent clearly establishes federal law in Lemke’s favor.
All we can say in the face of Wilson and Jose is that our
circuit law provides no binding answer on that point.
Because our direct examination of Supreme Court precedent


the instruction, he would have been acquitted of murder entirely. The
court of appeals agreed that the evidence pointed “to murder in the first
degree and nothing else,” and that the second-degree murder instruction
had been “at least technically erroneous.” Green v. United States,
218 F.2d 856, 859 (D.C. Cir. 1955). It seems likely, therefore, that Green
could not have been retried for second-degree murder on remand. Our
larger point in Jose, however, was that ordinarily a defendant who
succeeds in overturning a conviction on appeal can be retried. See United
States v. Tateo, 377 U.S. 463, 465 n.1 (1964) (“[Green] holds only that
when one is convicted of a lesser offense included in that charged in the
original indictment, he can be retried only for the offense of which he was
convicted rather than that with which he was originally charged.”).
Moreover, even if Jose misinterpreted Green, its decision remains as the
potential law of the circuit regarding Green’s effect.
 4
   The Arizona Court of Appeals cited Jose in support its conclusion that
jeopardy continued on Lemke’s felony murder charge even after it
terminated on the robbery charge. Lemke, 141 P.3d at 415.
                      LEMKE V. RYAN                        21

reveals no clearly established law precluding Lemke’s retrial
for felony murder, we reject his double jeopardy claim
preclusion argument.

    Case law from our sister circuits that conflicts with
Wilson also buttresses our conclusion that Lemke’s double
jeopardy claim is not founded on clearly established Supreme
Court law. See Carey v. Musladin, 549 U.S. 70, 76 (2006)
(noting that divergent treatment of an issue among circuit
courts “reflect[ed] the lack of guidance” from the Supreme
Court); Meras v. Sisto, 676 F.3d 1184, 1190 (9th Cir. 2012)
(noting that extensive disagreement among lower courts may
suggest that a state court did not unreasonably apply clearly
established federal law). Several decisions from other
circuits suggest that double jeopardy does not necessarily bar
retrial on a hung count after jeopardy has terminated on a
lesser included or greater inclusive offense charged in the
same indictment. See, e.g., United States v. Jackson,
658 F.3d 145, 151–53 (2d Cir. 2011) (finding no double
jeopardy violation where defendant had been convicted of
lesser included offense and retried on deadlocked greater
offense, but suggesting that collateral estoppel might have
barred retrial had defendant been acquitted, rather than
convicted, of lesser offense); Delgado v. Fla. Dep’t of
Corrections, 659 F.3d 1311, 1330 (11th Cir. 2011) (citing
Jose with approval and noting that jeopardy can continue on
one charge even after it terminates on a lesser or greater
offense charged in the same indictment); United States v.
Howe, 538 F.3d 820, 827 (8th Cir. 2008) (holding that, when
a jury acquits a defendant of a greater offense and deadlocks
as to a lesser offense, “jeopardy continues as to the lesser
offense, notwithstanding the defendant’s acquittal on the
greater offense”), abrogated on other grounds by Yeager v.
United States, 557 U.S. 110 (2009). These cases cast doubt
22                     LEMKE V. RYAN

on the proposition that Supreme Court precedent clearly
establishes that double jeopardy bars retrial on a deadlocked
count once jeopardy has terminated on another count in the
indictment that constitutes the “same offense.”

    We conclude, therefore, that Lemke has failed to meet the
requirement of 28 U.S.C. § 2254(d)(1) that the decision of the
Arizona Court of Appeals rejecting double jeopardy claim
preclusion “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.”

     2. Collateral Estoppel

     We also conclude that the Arizona Court of Appeals did
not unreasonably apply clearly established federal law in
holding that collateral estoppel did not bar Lemke’s retrial for
felony murder. Collateral estoppel would apply if Lemke’s
retrial for felony murder would involve “relitigating any issue
that was necessarily decided by a jury’s acquittal in a prior
trial.” Yeager, 557 U.S. at 119. In deciding whether an issue
was “necessarily decided” by the jury, the court must
“examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.” Ashe v.
Swenson, 397 U.S. 436, 444 (1970) (internal quotation marks
and footnote omitted).

    The Arizona Court of Appeals reasonably concluded that
Petitioner could not carry his burden of demonstrating that
the jury “necessarily decided” that he had not committed
armed robbery. The court noted that “[t]he LeBlanc
                       LEMKE V. RYAN                          23

instruction prevents us from knowing whether the jury
unanimously acquitted defendant of armed robbery or simply
could not agree.” Lemke, 141 P.3d at 416. Although the
jury’s silence on armed robbery constituted an implied
acquittal of that charge for the purposes of the claim
preclusion aspect of double jeopardy, it does not have an
issue preclusive effect unless the record indicates that the jury
necessarily decided the issue in Lemke’s favor. See Schiro v.
Farley, 510 U.S. 222, 236 (1994) (“We have in some
circumstances considered jury silence as tantamount to an
acquittal for double jeopardy purposes. Green v. United
States, 355 U.S. 184, 190-191 . . . ; Price v. Georgia,
398 U.S., at 329, 90 S. Ct., at 1761. The failure to return a
verdict does not have collateral estoppel effect, however,
unless the record establishes that the issue was actually and
necessarily decided in the defendant's favor.”); see also
United States v. Carothers, 630 F.3d 959, 964–65 (9th Cir.
2011) (holding that the trial court’s improper mistrial on
simple possession barred retrial for that charge under double
jeopardy but carried no issue-preclusive effect with respect to
retrial for a greater inclusive charge). Here, the record did
not establish that the jury had necessarily decided that Lemke
did not commit armed robbery.

                       CONCLUSION

    The judgment of the district court is

    AFFIRMED.
24                    LEMKE V. RYAN

BURNS, District Judge, concurring in part and dissenting in
part:

    I agree that the decision of the Arizona Court of Appeals
rejecting Lemke’s double jeopardy claim was not contrary to,
or an unreasonable application of, clearly established Federal
law. I don’t agree, though, that Lemke still had a double
jeopardy claim left after he pled guilty to felony murder.
Lemke signed a plea agreement in which he bargained away
his right to pursue “any and all motions, defenses, objections
or requests which he [had] made or raised, or could assert
hereafter, to the court’s entry of judgment against him.” But
after he got what he bargained for — namely, a favorable
sentence — he reneged on his promise to drop his defenses
and appeals. We shouldn’t let him get away with such
perfidy.

    The panel majority holds as a threshold matter that under
Menna v. New York, 423 U.S. 61, 62 (1975), a double
jeopardy claim is not impliedly waived by a defendant’s open
guilty plea, provided the defendant is not challenging his
factual guilt and his claim can be resolved without
considering evidence outside the record. Majority opinion at
8–9. I agree with that. The majority also seems willing to
accept that a double jeopardy claim not preserved by Menna
can be expressly waived by a plea agreement. I agree with
that too. But the majority thinks that the comprehensive
waiver language in Lemke’s plea agreement does not cover
his failed double jeopardy claim, which was the mainspring
of his defense before he decided to plead guilty to felony
murder. That’s where I disagree.

    After the jury convicted Lemke of theft, but hung on the
felony murder count, Arizona sought to retry him for felony
                      LEMKE V. RYAN                         25

murder. Lemke objected, raising his double jeopardy defense
in a motion with the state trial court. The trial judge denied
the motion. Lemke next raised the defense in a petition for
special action — basically, an interlocutory appeal — with
the Arizona Court of Appeals. That court also rejected it.
Lemke then sought to raise the defense in the Arizona
Supreme Court, which refused to hear his claim.

    Having exhausted his double jeopardy defense in the state
courts, Lemke faced going to trial again and, if convicted,
pursuing his arguments on direct appeal or on collateral
review in the federal courts. He instead opted to make a deal
with the State. In exchange for a parole eligible sentence that
would run concurrently with the sentence he was already
serving for theft, Lemke promised to plead guilty to felony
murder, end his legal challenges, and serve his time. The state
kept its word; Lemke was sentenced to concurrent time on the
felony murder charge, and was declared eligible for eventual
parole. That should have ended the matter, but then he filed
a habeas corpus petition with our court.

    The majority gets off on the wrong foot by misconstruing
the plain language of Lemke’s plea agreement, then
compounds its misstep by ignoring the context in which the
agreement was entered into. The waiver language “is broad,”
the majority concedes, but they still find it insufficient
because it doesn’t specifically mention “double jeopardy” or
any other particular subject matter. It doesn’t have to. The
two requirements for a valid waiver are that it must be
“voluntary in the sense that it was the product of a free and
deliberate choice,” which is not in issue here, and “made with
a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). Yes, the
26                         LEMKE V. RYAN

Ninth Circuit requires an express waiver of collateral attack.
United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir. 1998);
United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).
And, yes, the language must encompass what is actually
being waived. United States v. Leniear, 574 F.3d 668, 672
(9th Cir. 2009). But under any fair understanding of
language, Lemke’s plea agreement meets those requirements.
His sweeping commitment to give up “any and all” defenses
“he has made or raised” surely encompasses the double
jeopardy defense — the only defense that he had raised at all
levels in the Arizona courts. And his categorical pledge that
his waiver would extend to any “motions, defenses,
objections, or requests” that he “could assert hereafter” just
as surely covers a collateral attack. In spite of the majority’s
parsing, the language isn’t ambiguous, superfluous, or
redundant. It conveys Lemke’s all-inclusive promise to stop
defending against the charge. No amount of parsing can
change that.1

   The case that should guide our determination of whether
Lemke’s waiver was express enough is Ricketts v. Adamson,
483 U.S. 1, 8–9 (1987). In Adamson, a defendant who pled

  1
     The majority says a § 2254 petition isn’t a “motion[ ], defense[ ],
objection[ ], or request[ ].” Majority opinion at 7. Maybe that’s right,
although our circuit has at least casually referred to § 2254 habeas
petitions as “motions.” See, e.g., Lee v. Lampert, 653 F.3d 929, 935 n.10
(9th Cir. 2011) (en banc); Boyd v. Newland, 467 F.3d 1139, 1145 n.4 (9th
Cir. 2006). This misses the point, though. Even assuming Lemke’s
§ 2254 petition isn’t a “motion,” the double jeopardy claim driving the
petition is certainly a “defense” or “objection” to the entry of judgment
against him, just as it’s one that Lemke had “made or raised” at the time
he signed the plea agreement and that he “could assert hereafter.” Because
there is no ambiguity here, the benefit of the doubt principle that would
have us construe the plea agreement in his favor doesn’t apply. See
United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006).
                      LEMKE V. RYAN                        27

guilty to a lesser charge under a plea agreement went back on
his word after he received the benefit he bargained for. In
response to the defendant’s breach, the state reinstated the
original charges and tried and convicted him. Our circuit on
habeas review, like the majority here, held that the
defendant’s plea agreement didn’t waive his double jeopardy
claim because it didn’t explicitly mention the words “double
jeopardy.” Adamson v. Ricketts, 789 F.2d 722, 728 (9th Cir.
1986) (en banc). But the Supreme Court dismissively
rebuffed that cramped view, saying “we do not find it
significant, as did the Court of Appeals, that ‘double
jeopardy’ was not specifically waived by name in the plea
agreement.” 483 U.S. at 9. The point was, according to the
Court, that more general language could be “precisely the
equivalent to an agreement waiving the double jeopardy
defense.” Id. at 10. So it is here, where Lemke’s commitment
to “waive any and all defenses” subsumes the particular
defense he raises and is therefore precisely equivalent to a
lesser promise to “waive the defense of a double jeopardy.”

    The majority suggests that statements made by the
Arizona trial judge during the change of plea colloquy show
that Lemke retained the right to bring a federal habeas corpus
petition. I don’t see how. The judge correctly informed
Lemke that, as part of his plea agreement, he had waived any
right to appeal. But because Arizona, under its state
constitution, permits a defendant to file a “petition for post
conviction relief” in every criminal case, the judge went on
to inform him of that. This right, known as “a Rule 32 of-
right proceeding,” see State v. Ward, 211 Ariz. 158, 161–62
(2005), is peculiar to Arizona and has nothing to do with
federal habeas corpus. The judge made that clear by telling
Lemke that his petition had to be filed with “the sentencing
judge.” Lemke eventually filed a Rule 32 petition, but it was
28                     LEMKE V. RYAN

summarily denied because the sentencing judge found that
every issue Lemke raised, including double jeopardy, “was
either raisable on direct appeal or has been waived at trial or
on appeal.” See Lemke v. Ryan, Case No. CR 9-CV-1059
(D. Ariz), Doc. No. 15-7 (June 5, 2008). And, indeed, Lemke
can’t challenge that ruling in this court because a Rule 32
petition is strictly a state remedy that does not implicate
federal habeas corpus jurisdiction. See Hunt v. Vasquez,
899 F.2d 878, 880 (9th Cir. 1990) (habeas corpus insures that
a federal forum is available to vindicate a violation of a
federal right; there is no federal right to any particular state
law regime).

    Lemke got what he bargained for, and I see no reason to
let him out of his obligations under the plea agreement.
“[T]he Double Jeopardy Clause, which guards against
Government oppression, does not relieve a defendant from
the consequences of his voluntary choice.” United States v.
Scott, 437 U.S. 82, 99 (1978). If the state may, as in
Adamson, prosecute a defendant on the original charges
following his breach of a plea agreement, then it should also
be permitted to hold him to the plea agreement in the first
place. Lemke knew he had to abandon his double jeopardy
defense in order to wrangle sentencing concessions from the
State. He made a calculated and voluntary choice to waive it,
and we should treat his choice no differently from the way the
Supreme Court treated the choice made by the defendant in
Adamson.

    By failing to enforce Lemke’s express waiver, we risk
undermining the integrity of the plea bargaining process.
“Plea bargains are an important — indeed an essential —
component of our criminal justice system; they provide vast
benefits to the government, to our courts, to the public and to
                       LEMKE V. RYAN                          29

criminal defendants.” United States v. Gonzalez, 981 F.2d
1037, 1040 (9th Cir. 1992) (Kozinski, dissenting). Parties
bargain with the expectation that the bargains they reach will
be enforced. Accordingly, our circuit has generally treated
plea agreements as binding contracts, United States v.
Gonzales-Melchor, 648 F.3d 959, 963 (9th Cir. 2011) (“We
construe a plea agreement as a contract between a
government and a defendant”), and absent good reason not to
we respect and enforce the bargains the parties make.

     Here the State bargained for a guilty plea to a murder
charge, and offered Lemke a reduced sentence in exchange.
But it also bargained for finality — that if the judge accepted
and followed the plea agreement, the charge would stick and
Lemke’s murder conviction would be final. Our circuit has
described finality as “perhaps the most important benefit of
plea bargaining.” United States v. Navarro-Botello, 912 F.2d
318, 322 (9th Cir. 1990). Except apparently in this case. In
my view, it’s simply unfair to let Lemke flout his obligations
under the plea agreement, deprive the State of the benefit of
its bargain, and put us to the task of reconsidering legal issues
in a case that should have been final. See United States v.
Pratt, 657 F.2d 218, 220 (8th Cir. 1981) (defendant “pleaded
guilty, presumably, because he preferred the certainty of a
maximum of ten years to the risk of conviction and
punishment on each of six counts . . . . [W]e think it would be
unfair . . . to consider now the double-jeopardy claim urged
by defendant.”).

    A deal’s a deal, and we should enforce this one.
