Brazzel

In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. Two different juries have now convicted Brazzel of the lesser offense, first degree assault. Both juries failed to reach the alternate and more serious charge of attempted murder. The framework for our analysis of this double jeopardy challenge is found in two Supreme Court cases —Green v. United States, 355 U.S. 184 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323 , 90 S.Ct. 1757 , 26 L.Ed.2d 300 (1970).

In Green, the Supreme Court explained the doctrine of implied acquittal: when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge — without announcing any splits or divisions and having had a full and fair opportunity to do so — the jury’s silence on the second charge is an implied acquittal. 355 U.S. at 191 , 78 S.Ct. 221 . A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. See id. Under Price , putting the…