                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            July 22, 2010
                                     TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 WILLARD DEAN JACKSON,

        Petitioner–Appellant,
                                                           No. 08-6252
 v.                                                 (D.C. No. 5:08-CV-00486-R)
                                                           (W.D. Okla.)
 JOHN WHETSEL, Sheriff,

        Respondent–Appellee.


                                  ORDER AND JUDGMENT*


Before LUCERO, McKAY, and O’BRIEN, Circuit Judges.


       Willard Dean Jackson appeals from an order dismissing his 28 U.S.C. § 2254

habeas petition under Younger v. Harris, 401 U.S. 37 (1971). Exercising jurisdiction

pursuant to 28 U.S.C. § 2253, we reverse and remand to the district court with

instructions to grant the writ.

                                             I

       Jackson was charged in Oklahoma state court of making a lewd or indecent

       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
proposal to a child under sixteen in violation of Okla. Stat. tit. 21, § 1123.1 The

information alleged that Jackson:

       knowingly and intentionally made a lewd and indecent proposal to [the
       victim], who was at the time 15 years of age, that such child have unlawful
       sexual relations with another person, to wit: Willard Jackson asked [the
       victim] to take nude photographs of herself and give them to him and
       Willard Jackson asked [the victim] to touch herself and mast[u]rbate while
       he listened, contrary to the provisions of section 1123 of title 21 of the
       Oklahoma Statutes, and against the peace and dignity of the State of
       Oklahoma.

(capitalizations altered). At trial, the jury was instructed that it could convict only if the

state proved beyond a reasonable doubt that (1) the defendant, who was at least three

years older than the victim, (2) knowingly and intentionally, (3) made an oral lewd or

indecent proposal, (4) to a child under sixteen years of age, (5) for the child to have

unlawful sexual relations or intercourse with any person. The jury returned a guilty

verdict on the sole charge.

       On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”)


       1
           Section 1123 states:

       A. Any person who shall knowingly and intentionally:

       1. Make any oral, written or electronically or computer-generated lewd or
       indecent proposal to any child under sixteen (16) years of age for the child
       to have unlawful sexual relations or sexual intercourse with any person . . .
       ....
       upon conviction, shall be deemed guilty of a felony . . . . The provisions of
       this section shall not apply unless the accused is at least three (3) years
       older than the victim.


                                              -2-
unanimously reversed Jackson’s conviction because the state did not introduce evidence

to prove the fifth element of the crime; there was no evidence to suggest that Jackson

proposed that the victim have unlawful sexual relations or intercourse with any person.

By a three-to-two margin, however, a majority of the court ruled that the evidence

adduced at trial proved that Jackson was guilty of a different crime, solicitation of a

minor to perform or prepare obscene material or child pornography in violation of Okla.

Stat. tit 21, § 1021(B).2 Treating § 1021(B) as a lesser-included offense of § 1123, the

OCCA remanded to the district court to enter a new judgment of conviction under §

1021(B) and to resentence Jackson accordingly. Jackson filed a petition for rehearing

arguing that the imposition of a conviction of a crime for which he was not charged or

tried by jury violated his rights under the Sixth Amendment. The OCCA denied the

petition.

       Before resentencing could take place, Jackson filed a 28 U.S.C. § 2254 habeas


       2
            Section 1021(B) reads:

       B. Every person who:

       1. Willfully solicits or aids a minor child to perform; or

       2. Shows, exhibits, loans, or distributes to a minor child any obscene material or
       child pornography for the purpose of inducing said minor to participate in,

       any act specified in paragraphs 1, 2, 3 or 4 of subsection A of this section shall be
       guilty of a felony, upon conviction . . . .

The referenced subsection A describes indecent exposure, indecent exhibitions, obscene
material, and child pornography. See Okla. Stat. tit. 21, § 1021(A).

                                               -3-
petition in the United States District Court for the Western District of Oklahoma seeking

the dismissal of the charges, release from state custody, and an injunction against future

state prosecutions in the case. The district court dismissed the habeas petition,

concluding that it was barred under the Younger abstention doctrine. After Jackson filed

a notice of appeal, we granted a certificate of appealability.

                                              II

       We review de novo a district court’s decision to abstain under Younger. See

Walck v. Edmondson, 472 F.3d 1227, 1232 (10th Cir. 2007). Younger requires federal

courts to abstain from intervention into state criminal proceedings if: “(1) state judicial

proceedings are ongoing; (2) state proceedings implicate an important state interest; and

(3) the state proceedings offer an adequate opportunity to litigate federal constitutional

issues.” Winnebago Tribe v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003) (citation

omitted). If these three conditions are satisfied, “Younger abstention is non-discretionary

and, absent extraordinary circumstances, a district court is required to abstain.” Crown

Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003)

(citation omitted).

       We conclude that Younger abstention is inappropriate because state proceedings

do not provide Jackson an adequate opportunity to present his claim. “Typically, a

plaintiff has an adequate opportunity to raise federal claims in state court unless state law

clearly bars the interposition of the federal statutory and constitutional claims.” Id.

(quotation and alteration omitted); see also Younger, 401 U.S. at 45 (“The accused
                                             -4-
should first set up and rely upon his defense in the state courts . . . unless it plainly

appears that this course would not afford adequate protection.” (quotation omitted)).

         The district court held that Jackson could raise his federal claims in a state petition

for post-conviction relief. In so holding, however, it ignored the fact that the state’s

highest court has already rejected the claims Jackson seeks to present. The OCCA has

been abundantly clear that post-conviction petitions will not provide a second bite at the

apple:

         On numerous occasions this Court has set forth the narrow scope of review
         available under the amended Post-Conviction Procedure Act. The Post-
         Conviction Procedure Act was neither designed nor intended to provide
         applicants another direct appeal. The Act has always provided petitioners
         with very limited grounds upon which to base a collateral attack on their
         judgments. Accordingly, claims that could have been raised in previous
         appeals but were not are generally waived; claims raised on direct appeal
         are res judicata.

Murphy v. State, 124 P.3d 1198, 1199-1200 (Okla. Crim. App. 2005) (citations omitted,

emphases added); see also Okla. Stat. tit. 22, § 1086 (“Any ground finally adjudicated . . .

in the proceeding that resulted in the conviction . . . may not be the basis for a subsequent

application [for post-conviction relief].”); Woodruff v. State, 910 P.2d 348, 350 (Okla.

Crim. App. 1996) (“The application of the [post-conviction procedure] act is limited to

only those claims which, for whatever reason, could not have been raised on direct

appeal. Issues which were raised and decided on direct appeal are barred from further

consideration by res judicata.” (citations and italics omitted)); Hale v. State, 807 P.2d

264, 267 (Okla. Crim. App. 1991) (“Petitioner is . . . barred from asserting any claims

                                               -5-
which have been, or which could have been, raised previously in his direct appeal. It is

not the purpose of the Post-Conviction Procedure Act, to provide a second appeal under

the mask of post-conviction application.” (citation and quotation omitted));

cf. Crown Point I, LLC, 319 F.3d at 1215-16 (holding no adequate opportunity to raise

federal claims based on operation of state preclusion rules).

       Unlike the parties in Huffman v. Pursue, Ltd., 420 U.S. 592, 610 (1975), and

Middlesex County Ethics Commission v. Garden State Bar Ass’n, 457 U.S. 423, 435-36

(1982), Jackson does not seek to excuse a failure to present claims to the relevant state

tribunal. Nor does Jackson argue his claim is doomed based on the rejection of similar

claims in other cases. See Hicks v. Miranda, 422 U.S. 332, 350 & n.18 (1975) (rejecting

contention that a court need not apply Younger because an intermediate appellate court

had denied similar claims in another case). Rather, Jackson correctly points out that his

constitutional claims have already been presented to, and rejected by, the highest court in

the state. It beggars belief to suppose that Jackson has an adequate opportunity to litigate

his federal claims before the OCCA when that court committed the constitutional

violation at issue, see Part III, infra, has already rejected the very claims Jackson asks the

federal courts to consider, and has repeatedly stressed that it will not reconsider in post-

conviction proceedings arguments rejected on direct appeal. We do not require a federal

claimant to file seriatim petitions for rehearing ad infinitum.

       Moreover, the state does not contend that its post-conviction procedures permit

Jackson to re-assert his claims. Rather, it acknowledges that placing “this matter back in
                                             -6-
front of the OCCA” presents “a difficult issue.” It argues that Jackson has an adequate

opportunity to present his claims because the parties can jointly request that the OCCA

amend its order to allow Jackson to be retried or, if that fails, the state can independently

request a new trial at the district court level. Yet Jackson does not seek retrial, he

requests release from custody and an injunction against retrial. The state’s first proposal

is simply an offer of settlement: If Jackson agrees to waive his double jeopardy claim,

the state will support his Sixth Amendment claim (albeit with no guarantee the OCCA

will grant relief). Such an offer does not provide Jackson an adequate opportunity to

litigate his claims in state court. The second proposal suggests that the trial court may

disregard the OCCA’s mandate by ordering retrial rather than entering a conviction.

However, under Oklahoma law, “the trial tribunal has no power to reopen issues

precluded by the terms of an appellate opinion but must obey the mandate’s direction.”

Chamberlin v. Chamberlin, 720 P.2d 721, 728 n.35 (Okla. 1986).

       More fundamentally, both proposals misconstrue the third prong of the Younger

test. The state’s argument presumes there is an adequate state forum whenever there is a

theoretical possibility—no matter how minute—that Jackson’s conviction will not stand.

But in determining whether a litigant has an adequate opportunity to present his claims,

we do not search for potential outcomes that might benefit the petitioner; the possibility

of a pardon, for example, does not force us to abstain under Younger. Rather, we ask if

the federal plaintiff has the opportunity to present his particular federal constitutional

claims in state court proceedings. See Moore v. Sims, 442 U.S. 415, 430 (1979) (“[T]he
                                             -7-
only pertinent inquiry is whether the state proceedings afford an adequate opportunity to

raise the constitutional claims . . . .”); Juidice v. Vail, 430 U.S. 327, 337 (1977).

       Due to the highly unusual procedural history of this case, Jackson is unable to

present his federal claims in state court. Accordingly, the district court erred by

dismissing these claims under Younger.

                                              III

       Having concluded that the district court erred in dismissing Jackson’s petition on

abstention grounds, we exercise our discretion to proceed to the merits of Jackson’s Sixth

Amendment claim.3 “Although we will generally decline to consider in the first instance

issues not considered by the district court, we will make an exception where injustice

might otherwise result, or where the issue presents only a question of law.” Sac & Fox

Nation v. Norton, 240 F.3d 1250, 1264 (10th Cir. 2001) (quoting United Food &

Commercial Workers Union v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 360 n.9 (6th

Cir. 1998)); see also Ohlander v. Larson, 114 F.3d 1531, 1538 (10th Cir. 1997)

(“Although the district court’s failure to apply the correct legal standard could serve as a

basis for remand, in the interest of efficiency and judicial economy, and in the interest of


       3
         Because Jackson’s claims are against a state rather than the federal government,
the Fourteenth Amendment is technically at issue. However, the relevant Sixth
Amendment rights have been incorporated so as to apply against the states. See Duncan
v. Louisiana, 391 U.S. 145 (1968); In re Oliver, 333 U.S. 257 (1948). We accordingly
refer to Jackson’s Sixth Amendment claim to distinguish it from his Fifth Amendment
double jeopardy claim, which also applies against the states by way of the Fourteenth
Amendment, see Benton v. Maryland, 395 U.S. 784 (1969).

                                             -8-
providing immediate guidance as to the most appropriate direction of this case . . ., we

turn to the merits . . . .”). Several factors inform our choice: The facts relevant to

Jackson’s Sixth Amendment claim are not in dispute, the issue is purely legal (and also

not in dispute), and judicial economy concerns favor consideration by this court given the

patent unconstitutionality of the OCCA’s order. Moreover, we cannot ignore the fact that

Jackson has been imprisoned under an infirm order for more than two and a half years.

       We hold that Jackson is entitled to habeas relief because the OCCA order was

“contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The

state wisely concedes that solicitation of a minor to perform or prepare any obscene

material or child pornography in violation of Okla. Stat. tit 21, § 1021(B) is not a lesser

included offense of making a lewd or indecent proposal to a child under sixteen in

violation of Okla. Stat. tit. 21, § 1123. The state further admits that the jury was never

instructed on the elements of § 1021(B). In so doing, it has conceded that the OCCA’s

order violated Jackson’s clearly established Sixth Amendment rights.

       In Cole v. Arkansas, 333 U.S. 196 (1948), the Supreme Court addressed a state

appellate court order essentially identical in all relevant ways to the one under

consideration. In that case, the petitioners were charged in state court with a violation of

§ 2 of Act 193, which made it illegal “to assemble at or near any place where a ‘labor

dispute’ exists and by force or violence prevent . . . any person from engaging in any

lawful vocation, or . . . to promote, encourage or aid any such unlawful assemblage.”
                                             -9-
Cole, 333 U.S. at 198. Section one of the same act made it “unlawful for any person by

the use of force or violence, or threat of the use of force or violence, to prevent or attempt

to prevent any person from engaging in any lawful vocation.” Id. at 199. The jury was

instructed on the elements of § 2, and convicted on that charge. Id. On appeal, the

Arkansas Supreme Court held that the facts alleged in the information—which accused

the petitioners of “using force and violence to prevent [a certain individual] from

working”—related to § 1, and affirmed a conviction under § 1 in lieu of addressing

petitioners’ constitutional challenges to § 2. Cole, 333 U.S. at 200. The state court

denied a petition for rehearing advancing due process claims. Id.

       The Supreme Court roundly rejected the state court’s order:

       [The state court] affirmed [petitioners’] convictions as though they had
       been tried and convicted of a violation of § 1 when in truth they had been
       tried and convicted only of a violation of a single offense charged in § 2, an
       offense which is distinctly and substantially different from the offense
       charged in § 1. To conform to due process of law, petitioners were entitled
       to have the validity of their convictions appraised on consideration of the
       case as it was tried and as the issues were determined in the trial court.
               We are constrained to hold that the petitioners have been denied
       safeguards guaranteed by due process of law—safeguards essential to
       liberty in a government dedicated to justice under law.

Id. at 202. The Court explained that “[i]t is as much a violation of due process to send an

accused to prison following conviction of a charge on which he was never tried as it

would be to convict him upon a charge that was never made.” Id. at 201; see also

Jackson v. Virginia, 443 U.S. 307, 314 (1979) (“It is axiomatic that a conviction upon a

charge not made or upon a charge not tried constitutes a denial of due process.”);

                                            - 10 -
Sallahdin v. Gibson, 275 F.3d 1211, 1227 (10th Cir. 2002).

       The OCCA ordered Jackson convicted of a crime for which he was neither

charged nor tried, by a three-to-two vote no less. A jury has never been asked to consider

the elements of § 1021(B), nor has any jury found those elements beyond a reasonable

doubt.4 The OCCA’s order falls far outside the bounds of permissible judicial action

under basic due process principals, and is contrary to clearly established federal law.

Indeed, more than sixty years ago, the Cole court held that “[n]o principle of procedural

due process is more clearly established than that notice of the specific charge, and a

chance to be heard in a trial of the issues raised by that charge.” 333 U.S. at 201.

           Jackson was denied these core due process protections.5 Accordingly, he is


       4
          We are not faced with a situation in which the elements of another crime are
completely subsumed by the elements of the charged crime. For example, an appellate
court could be faced with a defendant who was charged with drug possession with intent
to distribute. If that court concludes that insufficient evidence supported the intent to
distribute element, it may nevertheless be the case that evidence was sufficient—and the
jury conclusively found—all the elements of simple possession. We have no occasion to
decide today whether an appellate court could order such a defendant convicted of simple
possession under those circumstances.
       5
         The OCCA dismissed these Sixth Amendment concerns on the ground that the
factual allegations of the information put Jackson on notice that he was required to
defend against a § 1021(B) charge. The Supreme Court rejected this contention in Cole;
despite factual allegations contained in the information that appeared to relate to a § 1
charge, the Court explained:

       The petitioners read the information as charging them with an offense
       under § 2 of the Act, the language of which the information had used. The
       trial judge construed the information as charging an offense under § 2. He
       instructed the jury to that effect. He charged the jury that petitioners were
                                                                               Continued . . .
                                            - 11 -
unambiguously entitled to habeas relief. A state appellate court has no authority to

simply order a conviction under § 1021(B). Because Jackson is being held pursuant to a

constitutionally infirm order, he must be released from custody.

                                             IV

       Jackson also argues that a subsequent charge under § 1021(B) would violate his

rights under the Double Jeopardy Clause, and accordingly seeks an injunction against

future prosecution. We cannot address Jackson’s double jeopardy claim on the merits

because it is not yet ripe.

       The ripeness doctrine is intended to “to prevent the courts, through the avoidance

of premature adjudication, from entangling themselves in abstract disagreements.”

Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99, 105 (1977). Ripeness is a “jurisdictional prerequisite”

to our review, and thus “may be examined by this court sua sponte.” Keyes v. School

Dist. No. 1, 119 F.3d 1437, 1444 (10th Cir. 1997) (italics omitted). In determining

whether an issue is ripe, we must “evaluate both the fitness of the issue[] for judicial

decision and the hardship to the parties of withholding court consideration.” Abbott

       on trial for the offense of promoting an unlawful assemblage, not for the
       offense “of using force and violence.” Without completely ignoring the
       judge’s charge, the jury could not have convicted petitioners for having
       committed the separate, distinct, and substantially different offense defined
       in § 1.

Cole, 333 U.S. at 200. Identical circumstances are presented here, and the same result is
required.

                                            - 12 -
Labs., 387 U.S. at 149.

       With respect to the first factor, we consider “whether the case involves uncertain

or contingent future events that may not occur as anticipated, or indeed may not occur at

all.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.

1995) (quotation omitted). Although the state certainly appears intent on charging

Jackson under § 1021(B), we have difficulty considering a double jeopardy claim in the

absence of a second information. Without a specific charging document to review, our

double jeopardy analysis would be necessarily hypothetical. See United States v. Brown,

155 F.3d 431, 435 (4th Cir. 1998) (declining to address unripe double jeopardy claim

because second charge might fall into exception permitting successive prosecution “when

the lesser charge is instituted because the additional facts needed to prosecute the more

serious crime have not yet occurred or have not been discovered despite the exercise of

due diligence”); United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (“If

the government decides to proceed with another trial of [defendant], she may raise the

double jeopardy issue which would then be ripe for decision. We cannot speculate what

further proceedings, if any, will take place.”).

       Even assuming that the state will seek to try Jackson for a violation of § 1021(B),

we have no particular factual allegations to compare to the original charge and trial.

“Even though a challenged [state action] is sure to work the injury alleged . . .

adjudication might be postponed until a better factual record might be available.” Babbitt

v. United Farm Workers Nat’l Union, 442 U.S. 289, 300 (1979) (quotation omitted).
                                            - 13 -
Unless and until Jackson is actually charged, his double jeopardy challenge is unfit for

proper judicial review.

        As to the second ripeness factor, we must ask “whether the challenged action

creates a direct and immediate dilemma for the parties.” New Mexicans for Bill

Richardson, 64 F.3d at 1499 (quotation omitted). Although our conclusion that Jackson’s

double jeopardy claim is unripe certainly places him in an uncomfortable position, it does

not impose an immediate dilemma. If Jackson is charged with a violation of § 1021(B),

he will have an opportunity to advance his double jeopardy argument before the trial

court. We recognize “that the Double Jeopardy Clause protects an individual against

more than being subjected to double punishments. It is a guarantee against being twice

put to trial for the same offense.” Abney v. United States, 431 U.S. 651, 660-61 (1977).

But Jackson will be able to interpose his claim prior to trial. Moreover, we have held that

a double jeopardy claim may be heard in federal court on a § 2241 habeas petition, and

that such petitions are not subject to Younger abstention. See Walck, 472 F.3d at 1233,

1235.

        In light of the hypothetical nature of Jackson’s double jeopardy claim and the

availability of multiple layers of review for that claim should he be charged under §

1021(B), we conclude that we lack jurisdiction to consider it.




                                           - 14 -
                                          V

      For the foregoing reasons, we REVERSE the district court’s dismissal of

Jackson’s habeas petition and REMAND with instructions to grant the writ.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                        - 15 -
