Douglas

Before: SUSAN P. GRABER, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Dissent by Judge GRABER.

BEA, Circuit Judge:

We are asked to decide whether a federal habeas court can order a state court to re-sentence a defendant under a lesserincluded offense that was not considered by the jury.

Gordon Andrew Douglas was convicted by a California jury of one count of first-degree murder in violation of California Penal Code § 187, and a separate count of arson of an inhabited structure in violation of California Penal Code § 451(b). The evidence at trial established that Douglas and his brother broke into Jack Clark's home to commit a robbery. During the course of the robbery, Douglas stabbed Clark to death. Several hours later after Clark was killed, Douglas and his brother returned to the scene of their crime and set fire to Clark's house to destroy any fingerprints they might have left behind. Douglas was sentenced to twenty-five years to life in prison on the murder count, with a consecutive sentence of eight years on the arson count. In April 1997, after Douglas's direct appeals and state habeas claims were exhausted, he filed a habeas petition in…

We are asked to decide whether a federal habeas court can order a state court to re-sentence a defendant under a lesser-included offense that was not considered by the jury.

Gordon Andrew Douglas was convicted by a California jury of one count of first-degree murder in violation of California Penal Code § 187, and a separate count of arson of an inhabited structure in violation of California Penal Code § 451(b). The evidence at trial established that Douglas and his brother broke into Jack Clark’s home to commit a robbery. During the course of the robbery, Douglas stabbed Clark to death. Several hours later after Clark was killed, Douglas and his brother returned to the scene of their crime and set fire to Clark’s house to destroy any fingerprints they might have left behind. Douglas was sentenced to twenty-five years to life in prison on the murder count, with a consecutive sentence of eight years on the arson count. In April 1997, after Douglas’s direct appeals and state habeas claims were exhausted, he filed a habeas petition in federal district court.

In February 2008, the district court granted Douglas habeas relief on a single ground: there was insufficient…

dissenting:

I respectfully dissent. In my view, granting only a conditional writ of habeas corpus so that the state court may alter Defendant’s conviction to reflect a lesser-included offense — when the jury was never instructed on that charge — violates Defendant’s rights under the Double Jeopardy Clause. Because there was insufficient evidence to support Defendant’s conviction on the greater offense, in the circumstances the proper remedy is an unconditional writ of habeas corpus.

Like other circuits, we have held that we may “direct a lower court to enter a judgment of conviction on a lesser offense after finding a jury’s verdict insufficient to support its guilty verdict on a greater offense.” United States v. Vasquez-Chan, 978 F.2d 546, 553-54 (9th Cir.1992), overruled on other grounds by United States v. Nevils, 598 F.3d 1158 (9th Cir.2010) (en banc). In Vasquez-Chan , however, we cabined that general principle. One of “the conditions necessary to the entry of such a judgment” is that “the jury must have been explicitly instructed that it could find the defendant guilty of the lesser-included offense.” Id. at 554 . We explained that, “[i]f no such lesser-included offense…